CITY OF TOLEDO, Appellant, v. Paul TELLINGS, Appellee.

*ii TABLE OF CONTENTS

TABLE OF AUTHORITIES ... iv, v, vi

STATEMENT OF THE CASE AND FACTS ... 1

ARGUMENT

Proposition of Law No. I: The state legislature pursuant to R.C. 955.11 (A)(4)(a)(iii) has clearly defined that all dogs belonging to the breed commonly known as pit bulls are vicious and does not deny the owners substantive due process ... 3

Proposition of Law No. II: R.C. Section 955.11 (A)(4)(a)(iii), R.C. 955.22 and Toledo Municipal Ordinance 505.14 bear a real and substantial relation to the health, safety and morals of the public and is not unreasonable or arbitrary ... 9

Proposition of Law No. III: Dogs commonly known as pit bulls possess unique and readily identifiable physical and behavioral traits which are capable of recognition both by owners of ordinary intelligence and by enforcement personnel ... 17

CONCLUSION ... 18

CERTIFICATE OF SERVICE ... 20

APPENDIX

Notice of Appeal to the Ohio Supreme Court (April 5, 2006) ... 1

Decision and Judgment Entry of Lucas County Court of Appeals (March 3, 2006) ... 3

Notice of Appeal to Lucas County Court of Appeals (August 11, 2004) ... 31

Opinion of Toledo Municipal Court (July 8, 2004) ... 33

*iii UNREPORTED CASES:

City of Lima v. McFadden, No. 1-85-22 (1986 Ohio App. 3rd Dist.) ... 42

CONSTITUTIONAL PROVISIONS; STATUES; ORDINANCES:

Ohio Const. Art. XVII Section 3 ... 44

R.C. 955.11 ... 45

R.C. 955.22 ... 47

R.C. 4511.19 ... 49

T.M.C. 505.14 (Ord. 373-99) ... 63

*iv TABLE OF AUTHORITIES

Cases:

Allison v. Toledo (1919), 99 Ohio St. 416, 124 N.E. 237, syllabus ... 12

American Dog Owners Association v. City of Yakima, 777 P.2d 1046 (1989) ... 13

Arnold v. Cleveland (1993) 67 Ohio St.3d. 35 ... 12

Beagle v. Walden, 78 Ohio St.3d 59, 1997-Ohio-234 ... 16

Benevolent Association v. Parma (1980), 61 Ohio St.2d 375 ... 11

Benjamin v. Columbus (1957), 167 Ohio St. 103, 110, 4 O.O.2d 113 146 N.E.2d 854 ... 11

City of Lima v. Mc Fadden (June 30, 1986), Allen App. No. 1-85-22 unreported ... 13, 17

Cleveland v. Johnson, 30 Ohio Misc.2d 17, 2005-Ohio-1638 ... 4

Desenco, Inc. v. Akron (1999), 84 Ohio St.3d 535, 545, 706 N.E.2d 323 ... 11

Dog Federation of Wisconsin v. City of South Milwaukee, 504 N.W.2d 375 (1993) ... 13

Exxon Corp. v. Governor of Maryland, (1978) 437 U.S. 117 ... 14

Garcia v. Village of Tijeras (N.M. App. 1988) 108 N.M. 116, 767 P.2d 355 ... 14

Geiger v. Geiger (1927), 117 Ohio St. 451, 466, 160 N.E.28 ... 5

Greater Chicago Combine and Center v. City of Chicago, 2004 WL 2958680 ... 13

Hearn v. City of Overland Park, 772 P.2d 758 (1989) ... 13

Hilton v. Toledo (1980), 62 Ohio St.2d 394 ... 11, 14

Mayer v. Bristow (2000), 91 Ohio St.3d 3 ... 15

McCrone v. Bank One Corporation, 107 Ohio St.3d 272, 2005-Ohio-6505 ... 12, 15

New York City Friends of Ferrets v. City of New York, 876 F.Supp. 529 (1995) ... 13

*v Nicchia v. New York, 254 U.S. 228, 230, 41 S. Ct. 103, 65 L. Ed 235 (1920) ... 14

Olin Mathieson Chem. Corp. v. Ontario Store (1967), 9 Ohio St.2d 67, 70, 38 O.O.2d 163, 223 N.E.2d 592, 594 ... 11

Park Corporation v. City of Brook Park, 102 Ohio St.3d 166, 2004-Ohio-2237 ... 15

Parker v. Levy (1974), 417 U.S. 733 ... 18

Porter v. Oberlin (1965), 1 Ohio St.2d 143, 149, 30 O.O.2d ... 11

Rhoades v. City of Battle Ground, 63 P.3d 142 (2003) ... 13

Sentell v. New Orleans & Carrllton Railroad (1896), 166 U.S. 698 ... 14

Singer v. Cincinnati (1990), 57 Ohio App.3d 1 ... 8, 13, 17

State v. Anderson (1991), 57 Ohio St.3d 168 ... 7, 14, 17

State v. Anderson (1991), 57 Ohio St.3d 168, 566 N.E.2d 1224 ... 18

State v. Bickford (1913), 28 N.D. 36, 147 N.W. 407, paragraph 19 of the syllabus ... 5

State v. Boyd (1983), Ohio St.3d 30 ... 8

State v. Cowen, 103 Ohio St.3d 144, 2004-Ohio-4777 ... 4

State v. Dorso (1983), 4 Ohio St.3d 60 ... 11

State v. Ferguson (1991) 57 Ohio St.3d 176 ... 7, 17

State v. Hochhauser, 76 Ohio St.3d 455, 1996-Ohio-374 ... 5, 17

State v. Koss (1990, 49 Ohio St.3d 213 ... 12

State v. Peters 534 So.2d 760 (1988) ... 13

State v. Robinson (1989), 44 Ohio App.3d 128 ... 13

State v. Saurman (1980), 64 Ohio St.2d 137 ... 15

State v. Sinito (1975), 43 Ohio St.2d 98 ... 11

State v. Wilcox, (1983) 10 Ohio App 3d 11 ... 7

State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 2000-Ohio-116 ... 13

*vi State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59 ... 10, 15

State ex rel. Jackman v. Court of Common Pleas (1976), 9 Ohio St.2d 159 ... 14

State ex rel. Maurer v. Sheward (1994), 71 Ohio St.3d 513, 644, N.E.2d 369 ... 5

State ex rel. Plain Dealer v. Cleveland (1996), 75 Ohio St.3d 31 ... 17

State ex rel. Taft v. Campanella (1977), 50 Ohio St.2d 242 ... 11

Vanater v. Village of South Point, 717 F.Supp. 1236 (1989) ... 13

Worrell v. Court of Common Pleas, 69 Ohio St.3d 491, 1994-Ohio-128 ... 6

Yajnik v. Akron Dept. of Health, 101 Ohio St.3d 106, 1004-Ohio-357 ¶16 ... 11

Statutes, Ordinances & Constitutional Provisions

Ohio Constitution, Article II, § ... 17

Ohio Constitution, Article XVIII, §3 ... 4, 17

Ohio Revised Code, Section 955.11 ... 1, 3, 4, 6, 10, 15

Ohio Revised Code, Section 955.22 ... 1, 3, 4, 6, 7, 10, 15

Toledo Municipal Code, Section 505.14 ... 2, 3, 6, 9

Toledo Municipal Code, Section 505.14(a) ... 1, 3

*1 I. STATEMENT OF THE FACTS

Appellee, Paul Tellings, was criminally charged on July 30, 2002. (Supp., p.1.) Mr. Tellings was charged with a violations of the Toledo Municipal Code 505.14(a) and (c).[FN1] Mr. Tellings pled not guilty to the charges. (Supp., p.2.)

FN1. Toledo Municipal Code Section 505.14(a), as adopted by Ord. 373-99, states as follows: “No person or organization or corporation shall own, keep, harbor or provide sustenance for more than one vicious dog, as defined by revised code section 955.11, or a dog commonly known as a pit bull or pit bull mixed breed dog, regardless of age, in the City of Toledo, with the exception of puppies commonly known as pit bull or pit bull mixed breed for which the owner has filed an ownership acknowledgement form in person with the dog warden of Lucas County, prior to reaching seven days of age. The ownership of these puppies must be transferred according to revised code section 955.11 before they are three (3) months of age. Additionally, this section requires that all vicious dogs, known as pit bull or pit bull mixed breed dogs are required, when off the owner's premises, to be securely confined as described in revised code section 955.22 and muzzled.” (Appx. p. 63.)

Appellant filed a Motion to Dismiss the charges on constitutional grounds on April 11, 2003. (Supp., p.3.) The matter was set for hearing and extensive testimony was taken in July, 2003. (Supp., p. 3.)

Testimony was given by various witnesses, including expert witnesses called on behalf of both parties. Chief among the topics of testimony were issues concerning inherent characteristics of certain pit bull breeds. Among the witnesses called on behalf of the City of Toledo, was the local Dog Warden, Thomas Skeldon.

Mr. Skeldon testified that his department had “picked up 2000 pit bulls in the previous five years.” (Supp., p. 67; Skeldon, p. 64.) In his experience, these pit bulls had exhibited peculiar and unpredictable behavior. (Supp., pp.67-68; Skeldon, pp. 64-65.) Mr. Skeldon testified that pit bulls posed a particular danger in an urban setting like Toledo. (Supp., pp.80-81; Skeldon, pp. 77-78.) Skeldon acknowledged that pit bulls do not bite more often than other breeds, but that pit bull bites were more often fatal. (Supp., pp.80-83; Skeldon, pp. 77-80.)

Significantly, Skeldon commented that pit bulls were the number one reason of the Toledo Police to discharging their firearms, exceeding all other breeds and human suspects *2 combined. (Supp., p.93; Skeldon, p. 90.) Police often encounter these animals during execution of warrants. (Supp., p. 119; Skeldon, p. 116.) Skeldon indicated he has confiscated fighting pit bulls out of houses where young children lived. (Supp., p.114; Skeldon, p. 111.)

Likewise, expert witness Dale Wright testified on behalf of the City. Mr. Wright educated the trial court on some peculiarities often encountered with pit bull breed dogs. Describing the holding ability of a pit bull bite, Mr. Wright discussed the necessity of trainers to employ “break sticks”. (Supp., pp.23-24; Wright, pp. 20-21.) Mr. Wright discussed peculiar-type of danger posed to passer-by and persons such as meter readers and repairmen, should there be an over proliferation of pit bull breeds in an urban setting. (Supp., pp. 27, 57; Wright, pp. 24, 54.)

Karla Hamlin of the Lucas County Dog Warden Department testified on behalf of the City. Ms Hamlin testified as to her safety concerns and the fact that pit bulls often find themselves in the hands of inexperienced owners. (Supp., p.163; Hamlin, p. 10.) She likened the situation, from the perspective of public safety, to a “time bomb”. (Supp., p. 169; Hamlin, p. 16.)

Several witnesses testified on behalf of Appellee Tellings. (See Supp. pp. 194-233; 327-468.) As one would expect, the Appellee's witnesses expressed contrary views as to the nature of and danger posed by pit bull breeds. Ultimately, it is fair to characterize the conflicting expert testimony as being a debate over the merits of Toledo Municipal Code Section 505.14 and related state statutes.

On July 8, 2004, Judge Francis Gorman of the Toledo Municipal Court issued an Opinion finding against Tellings on his constitutional challenges to the statute and ordinance. (Appx., p.33.) Tellings withdrew his prior plea of not guilty and pled no contest. (Appx. p. 31.) *3 Tellings then appealed the denial of his Motion to Dismiss to the Court of Appeals for the Sixth Appellate District. (See, Notice of Appeal of August 11, 2004, Appx. p.31.)

On appeal, the Court of Appeals for the Sixth Appellate District reversed the trial court's opinion. (See Appx. p.3.) In a Decision and Judgment Entry dated March 3, 2006, the Court of Appeals found that Revised Code, Section 955.11, O.R.C. 955.22 and Toledo Municipal Code, Section 505.14 unconstitutionally violated procedural due process. (Appx. p.3.) Finally, the Court of Appeals found that Revised Code, Sections 955.11 and 955.22, as well as Toledo Municipal Code, Section 505.14(a) were unconstitutional as violations of Tellings' rights of due process. (Appx. p.15.) The Court of Appeals also upheld Appellant's argument that Revised Code, Sections 955.11 and 955.22 were unconstitutionally vague. (Appx. pp.27-28.)

On April 5, 2006, the City of Toledo filed a Notice of Appeal to this Court seeking reversal of the Court of Appeals' March 3, 2006 Decision and Judgment Entry.

II. ARGUMENT

Proposition of Law No. 1:

The state legislature pursuant to R.C. 955.11(A)(4)(a)(iii) has clearly defined that all dogs belonging to the breed commonly known as pit bulls are vicious and this definition does not deny the owners substantive due process.

On March 3, 2006, the Sixth District Court of Appeals found that Revised Code, Section 955.22,[FN2] Revised Code, Section 955.11(A)(4)(a)(iii)[FN3] and Toledo Municipal Code, Section 505.14(a)[FN4] were unconstitutional. In a 2 to 1 decision, the Court of Appeals curtailed efforts of *4 both the state and local legislative authorities to address concerns caused by vicious dogs and deprived the citizens and law enforcement personnel of effective laws to protect them from a serious menace.

FN2. R.C. Section 955.22 is attached at Appx. p.47.

FN3. R.C. 955.11 is attached at Appx. p.45.

FN4. T.M.C. Section 505.14 is attached at Appx. p.63. TM.C. 505.14(a) states: “(a) No person or organization or corporation shall own, keep, harbor or provide sustenance for more than one vicious dog, as defined by Ohio R.C. 955.11, or a dog commonly known as a Pit Bull or Pit Bull mixed breed dog, regardless of age, in the City of Toledo, with the exception of puppies commonly known as Pit Bull or Pit Bull mixed breed for which the owner has filed an ownership acknowledgement form in person with the Dog Warden of Lucas County, prior to reaching seven (7) days of age. The ownership of these puppies must be transferred according to Ohio R.C. 955.11 before they are three (3) months of age. Additionally, this section requires that all vicious dogs are required, when off the owners' premises, to be securely confined as described in Ohio R.C. 955.22 and muzzled.”

As a result of this decision in the Sixth District Court of Appeals pit bull owners in the City of Toledo and in northwest Ohio are no longer required by law to take common sense steps to prevent their pets from causing harm. Further, the City of Toledo has been prevented from the valid exercise of its police powers pursuant to the authority of the Ohio Constitution.[FN5] Without the protections of ordinance and statutes, owners of pit bulls would not be required to purchase liability insurance and properly confine their animals.

FN5. See Ohio Constitution Art XVIII, §3.

The Appeals Court cited State v. Cowen, 103 Ohio St.3d 144, 2004-Ohio-4777, as its authority to find R.C. 955.22 and T.M.C. 505.14 unconstitutional. The appeals court reliance on Cowen was misplaced. This Court in Cowen based its decision on a dog warden's unilateral decision to classify the appellee's dog as vicious based upon the unsupported word of complaining parties. The Sixth District, however, improperly extended this Court's holding in Cowan beyond its intended scope.

The Cleveland Municipal Court, in Cleveland v. Johnson, 30 Ohio Misc.2d 17, 2005-Ohio-1638, recognized this Court's holding in Cowan, but found that the facts in Cowan did not lead to the conclusion that all parts of a similar vicious dog ordinance would be unconstitutional. The Johnson Court explained: “As in the statute in Cowan and Cleveland Codified Ordinance 604.01(d), the designation of a vicious dog may occur under numerous conditions. In Cowan, the specific behavior of the dogs caused the designation as vicious by the dog warden. In the *5 present case, the dog has been designated vicious because it belongs to a breed that is commonly known as a pit bull dog. Cleveland Codified Ordinance 604.01(k)(3). It is well established that, where possible, a regulation that is declared unconstitutional should not necessarily be invalidated in its entirety. ‘If any provision of a section of the Revised Code * * * is held invalid, the invalidity does not affect other provisions or applications of the section or related sections which can be given effect without the invalid provision or application, and to this end the provisions are severable.’ R.C. 1.50. Therefore, the question becomes whether a unilateral designation of viciousness due to alleged behavior, which has been declared unconstitutional, is severable from a designation of viciousness due to the breed of a dog. A regulation cannot be severed if severability fundamentally disrupts the statutory scheme of which the unconstitutional provision is a part. State ex rel Maurer v. Sheward (1994), 71 Ohio St.3d 513, 523, 644 N.E.2d 369; State v. Hochhausler (1996), 76 Ohio St.3d 455, 464, 668 N.E.2d 457. The Ohio Supreme Court set forth the test for determining the severability of a statute in Geiger v. Geiger (1927), 117 Ohio St. 451, 466, 160 N.E.28:

‘(1) Are the constitutional and unconstitutional parts capable of separation so that each may be read and may stand by itself? (2) Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out? (3) Is the insertion of words or terms necessary in order to separate the constitutional part from the unconstitutional part, and give effect to the former only?; Quoting State v. Bickford (1913), 28 N.D. 36, 147 N.W. 407, paragraph 19 of the syllabus. See, also, Hochhausler, 76 Ohio St.3d at 464, 668 N.E.2d 457. “Id. at ¶¶5-7[FN6].

FN6. Appellant is cognizant that holdings of the Cleveland Municipal Court not binding on this Court. Nevertheless, the Municipal Court in Johnson has eloquently summarized the effect Cowan should have on this case.

*6 In Cowan, this court found certain provisions of R.C. 955.22 and R.C. 955.11 represented an unconstitutional violation of procedural due process. Specifically, this court found that 955.11(A)(4)(a)(i)-(ii) placed too much unfettered discretion with the State to make a subjective determination of what constituted a vicious dog.[FN7] In Cowan, this court found that there was a lack of due process because a person had no opportunity to challenge the authorities' determination without facing criminal charges. However, unlike here, the Cowan court did not address a scenario involving “pit bulls”. Pit bulls, unlike the dogs in Cowan, are specifically defined by statute and Code as being vicious dogs. (R.C. 955.11(A)(4)(a)(iii)). Where pit bulls are involved, the law enforcement authority does not have unchecked discretion to subjectively declare a dog vicious. Pit bulls are defined as vicious by the statute and Code. Accordingly, here, there was no due process problem similar to that found in Cowan.

FN7. The Court of Appeals noted at ¶47 of its Decision that this Court “did not exclude any of the definitions [of R.C. 955.11(A)(4)(a)].” This expansive reading of Cowan, however, would defeat the reasoning of this Court. The appellant acknowledges that S.Ct.R.Rep.Op. 1(B) provides that the “law stated in a Supreme Court Opinion is contained within its syllabus ...” However, “the syllabus of a Supreme Court Opinion states the controlling point or points of law : - adjudication”. Worrell v. Court of Common Pleas, 69 Ohio St.3d 491, 495, 1994-Ohio-128 (internal cite omitted) [emphasis added]. The facts of the case in Cowan do not invite the broad reading of the syllabus made here by the Court of Appeals.

R.C. 955.11 (A)(4)(a)(iii) defines a vicious dog as: “Belongs to a breed that is commonly known as a pit bull dog. The ownership, keeping or harboring of such a breed of dog shall be prima-facie evidence of the ownership, keeping, or harboring of a vicious dog.” T.M.C. 505.14 has adopted, by reference, the definition of R.C. 955.11(A)(4)(a)(iii).

The state legislature has provided in plain language a definition to give notice to owners of pit bulls. Many Ohio courts, including this one, have ruled that the language of *7 955.11(A)(4)(a)(iii) or similar language is not vague.[FN8] Pit bulls have been declared vicious by statute and, therefore, owners of this breed are on notice that they are affected by the law.

FN8. See, State v. Anderson (1991), 57 Ohio St.3d 168; State v. Ferguson (1991), 57 Ohio St.3d 176; Singer v. Cincinnati, supra.

Succinctly stated, the definition puts pit bull owners on notice that pit bull owners must follow the restrictions enumerated in R.C. 955.22. This is not a classification based upon dog the warden's unilateral decision based upon the unsupported word of complaining parties. Rather, the classification created declares that certain breeds are per se vicious. The holding in Cowan was inapplicable to this case.

The Court of Appeals decision finds fault in the fact that the pit bull owner must await being criminally charged to rebut the prima facie evidence that his or her pit bull is vicious or even dispute the fact that their dog is a pit bull. It is the appellants position that, that is what trials are for, a factual determination of the guilt or innocence of the defendant. In this matter, if it had proceeded to trial, the defendant would have had the opportunity to present his evidence to a judge or jury. Because ownership of pit bulls, as defined by the ordinance and statute, define pit bulls as vicious per se, presumption of viciousness, the due process concerns of the majority in Cowan are not present herein.

In truth the definition of a pit bull as a vicious dog is not unlike other statutory definitions that are found in the laws of this state. For instance, R.C. 4511.19(A)(3) makes it an offense in Ohio to operate a motor vehicle with an alcohol concentration greater than an amount set by the legislature. Ohio courts have consistently upheld the constitutionality of RC 4511.19(A)(3). See for instance, State v. Wilcox, (1983) 10 Ohio App 3d 11. In 4511.19(A)(3) the legislature adopted a certain threshold as to what concentration of alcohol a person should not exceed while operating a motor vehicle. This Court has held that the State need only prove operation of a *8 motor vehicle while exceeding the statutory blood alcohol concentration to show a violation of 4511.19(A)(3). Id. State v. Boyd, (1983) 18 Ohio St. 3d 30. Actual intoxication need not be proven, and, in fact, is not even relevant in a trial seeking conviction under R.C. 4511.19(A)(3), neither is actual viciousness of a particular dog required or relevant, where a dog is a pit bull.

The analogy between R.C. 4511.19(A)(3) and R.C. 955.11 (A)(4)(a)(iii) does not end there. In this case the Appellee attempted to avoid the application of the law by presenting evidence that not all pit bulls were vicious. The Court of Appeals appears to have bought into this argument. Undoubtedly, a person charged with a violation of R.C. 4511.19(A)(3) could produce experts to testify, probably correctly, that not every person with an alcohol concentration above the prescribed amount was actually intoxicated. As discussed above, this argument should not prevail, see Boyd, supra, nevertheless, under the rationale employed by the Court of Appeals in this case, R.C. 4511.19(A)(3) could be struck down.

It is significant that the Appellee in this case never disputed the dog warden's classification of his dogs as pit bulls. If he would have raised this matter for appeal there is question whether he would even have standing[FN9], but the court of appeals seemingly failed to consider this fact.

FN9. See Singer v. Cincinnati (1990) 57 Ohio App 3d 1.

This Court should reverse the Court of Appeals decision. A definition that classifies a particular breed or breads of dog as vicious is not unconstitutional and does not deny dog owners substantive due process. This Court should limit the holding of Cowan to the facts.

*9 Proposition of Law II:

R.C. Section 955.11 (A)(4)(a)(iii), R.C. 955.22 and Toledo Municipal Ordinance 505.14 bear a real and substantial relation to the health, safety and morals of the public and is not unreasonable or arbitrary.

The second issue in this case involves the fundamental precept in our form of government - separation of powers. In misapplying the rational basis test, the Court below, in essence, improperly substituted its judgment over that of state and local legislatures.

Due to its urban setting, Toledo has long had a problem with pit bulls which seems to be greater than that suffered in other suburban and rural communities. In particular, Toledo has found that, despite the presence of some responsible pet owners, many pit bulls are owned by drug dealers and persons involved in an nefarious “sport” of dog fighting. Many other pit bull dogs are kept by owners that make irresponsible choices in raising the animals. In an effort to combat the special dangers presented by aggressive pit bulls, City Council passed an ordinance designed to complement and expand upon already existing State statutes. The City ordinance restricted pit bull owners to owning only one (1) pit bull within the City limits. Controls were placed on pit bull owners taking their pets on public streets and parks without muzzles and the law required confining pit bulls in a manner that would prevent the dogs from roaming unfettered throughout the City's neighborhood. Both City Council and the State Legislature were mindful that pit bulls, with their known aggressive nature and fighting propensity, pose special danger to citizens, children, and other pets. While the City never disputed that some pit bull owners would be unfairly restricted due to the irresponsibility of other owners, City Council found such restrictions necessary to preserve the safety and health of the citizens of Toledo. Undoubtedly, similar motives existed at the state legislative level when restricting statues were passed by the General Assembly in 1987.

*10 Additionally, Toledo's vicious dog ordinance found at Section 505.14 of the Toledo Municipal Code and sections of the state vicious dog statutes were helpful to protect the life and limb of Toledo police officers and firefighters who, in their already dangerous jobs, come face to face with pit bulls during drug raids, execution of search warrants and other emergency calls. Now, there is a risk that the protections of the statues and ordinances passed at the local and state level have been deprived to these safety forces. If the recent Sixth District Opinion is allowed to stand, there would be virtually no restrictions on pit bull ownership in Toledo and surrounding communities to protect the public and the safety forces from this ever-present menace.

Purportedly, the Court of Appeals applied the rational basis test to determine that certain provisions of Revised Code Section 955.11, Revised Code Section 955.22 and Toledo Municipal Code Section 505.14 were unconstitutional.[FN10] The Court correctly recognized that the correct evaluation of the state and local laws required merely rational basis review. (see Appx. p. 24.) Unfortunately, the Court misapplied the test in such a manner that the result amounts to the usurpation of legislative authority by the Court. This Court has long recognized that statutes and ordinances enjoy a presumption of constitutionality. “The ability to invalidate legislation is a power to be exercised only with great caution and in the clearest of cases. That power, therefore, is circumscribed*110 by the rule that laws are entitled to a strong presumption of constitutionality and that a party challenging the constitutionality of a law bears the burden of proving that the law is unconstitutional beyond a reasonable doubt. **636 State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59, paragraph one of the syllabus. Furthermore, a municipality has wide discretion in exercising its power to legislate for the general welfare of its citizens; hence, an enactment comports with due process ‘if it bears a *11 real and substantial relation to the public health, safety, morals or general welfare of the public and if it's not unreasonable or arbitrary.’ ” Desenco, Inc. v. Akron (1999), 84 Ohio St.3d 535, 545, 706 N.E.2d 323, quoting Benjamin v. Columbus (1957), 167 Ohio St. 103, 110, 4 O.O.2d 113, 146 N.E.2d 854. Yajnik v. Akron Dept. of Health, 101 Ohio St.3d 106, 1004-Ohio-357 ¶16.[FN11] In Ohio, courts should be reluctant to find a legislative enactment unconstitutional.[FN12]

FN10. The lower court correctly noted that dog ownership is not a fundamental right that would necessitate a higher level of scrutiny. (Appx. p. 24.)

FN11. Hilton v. Toledo (1980), 62 Ohio St.2d 394. Further, a party challenging constitutionality of an ordinance or statute must show that the law is unconstitutional through proof beyond a reasonable doubt. Id.

FN12. See also, Benevolent Association v. Parma (1980), 61 Ohio St.2d 375; State ex rel Taft v. Campanella (1977), 50 Ohio St.2d 242; State ex rel. Dickman v. Defbacher (1955), 164 Ohio St. 142; State v. Sinito (1975), 43 Ohio St.2d 98; State v. Dorso (1983), 4 Ohio St.3d 60.

In misapplying the rational basis test, the lower court substituted its own judgment for that of the state and local legislatures based upon testimony at a municipal court hearing. Undoubtedly, the testimony which was disputed[FN13], was insufficient to overcome the strong presumption of constitutionality beyond a reasonable doubt. More importantly, however, under the rational basis test, legislation must have had no purposes rationally related to its goal. This Court has correctly held on previous occasions that a legislature does not violate equal protection clause merely because it makes classifications that are imperfect. Rather, laws with some reasonable basis should be upheld even if the law results in some inequality. This court has held: “In reviewing the reasonableness of an ordinance, we are guided by certain principles. It is not a court's function to pass judgment on the wisdom of the legislation, for that is the task of the legislative body which enacted the legislation. Olin Mathieson Chem. Corp. v. Ontario Store (1967), 9 Ohio St.2d 67, 70, 38 O.O.2d 163, 223 N.E.2d 592, 594. Further, “[u]nless there is a clear and palpable abuse of power, a court will not substitute its judgment for legislative discretion. Local authorities are presumed to be familiar with local conditions and to know the needs of the community.' “ *12 Porter v. Oberlin (1965), 1 Ohio St.2d 143, 149, 30 O.O.2d 491, 494, 205 N.E.2d 363, 368, quoting Allison v. Toledo (1919), 99 Ohio St. 416, 124 N.E. 237, syllabus” Arnold v. Cleveland (1993) 67 Ohio St.3d. 35.[FN14]

FN13. Significant portions of the trial transcript that illustrated the nature of the debate are included in the Supp. to Appellant's Brief. (See for example Supp. pp. 7-191, 194-468). This Court can see the differences of opinion in the testimony.

FN14. See also, McCrone v. Bank One Corporation, 107 Ohio St.3d 272, 2005-Ohio-6505.

If the Court of Appeals decision is left to stand, it would weaken the constitutional scheme of separation of powers. Virtually every criminal law would be subject to arbitrary reversal if a pressure group simply brings in expert witnesses to question the wisdom of the law at a municipal court level. If the municipal court would not overthrow the law, perhaps trial courts and Courts of Appeals following the precedent of this case, would. Imagine, switchblades would be legalized because many experts would be able to testify that they are no more dangerous than a common chefs knife. Sawed-off shotguns would once again saturate our streets because many experts would suggest they are no more dangerous than a common 22 caliber rifle. One needs no overactive imagination to consider many other examples of criminal statutes that could be questioned by experts and repealed not by the legislature, but activist courts.

If allowed to stand, this decision would also create a precedent in northwest Ohio that would substantially alter the rational basis test as it has been traditionally applied. Statutes and ordinances have to withstand the constant battery of countless experts who would argue that the legislature could have done something different or better or, simply, as here, that times have changed.[FN15] Rather than allowing the legislative process to amend or repeal law, precedent would *13 be established that would allow courts to simply take over based upon their feelings on a particular issue.

FN15. The Court of Appeals attempted to justify striking the Ordinance and Statute on the claimed basis that “well known fact[s]” had changed. (Appx. 21.) The Appeals Court believed, based upon evidence presented at a municipal court motion hearing, that facts no longer justified treating pit bulls differently. Id. Apparently, since the 1999 adoption of T.M.C. 505.14, pit bulls changed. The Court below erred in arriving at this conclusion. Further, barring an actual constitutional infirmity, the legislation and the democratic process should determine if the Ordinance should be repealed, not the Court of Appeals. The Appeals Court justified its action by giving an example of this Court overruling an earlier decision as illustrative of a court's ability to repeal law. In the Appeals' Court's example, this Court in State v. Koss (1990) 49 Ohio St.3d 213, overruled prior case law involving “battered woman syndrome.” This example is inapplicable, as the Court in Koss did not strike down an ordinance or statute. The Koss Court merely overruled prior evidentiary law based on a change in scientific evidence. Accordingly, the analogy employed below does not withstand scrutiny.

On many occasions, this Court and others have struck down legislative and executive actions because the legislature or executive branch of government improperly usurped judicial authority.[FN16] Just as this Court and other courts have protected the independence of the judiciary from legislative encroachment so too should this Court protect the legislative branch from judicial encroachment. For that reason, jurisdiction should be accepted in this case.

FN16. See State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 2000-Ohio-116.

The Sixth District Court of Appeal Decision in this case is also at odds with the decisions from other appellate districts,[FN17] and many jurisdictions throughout the United States.[FN18]

FN17. A motion to certify a conflict was denied by the Court of Appeals.

FN18. See, for instance, Greater Chicago Combine and Center v. City of Chicago, 2004 WL 2958680 (upholding Chicago's pigeon ban); New York City Friends of Ferrets v. City of New York, 876 F.Supp. 529 (1995) upholding New York City's ferret ban); State v. Peters 534 So.2d 760 (1988) (upholding a Florida pit bull ordinance); Hearn v. City of Overland Park, 772 P.2d 758 (1989) (upholding a Kansas pit bull ordinance; American Dog Owners Association v. City of Yakima, 777 P.2d 1046 (1989) (upholding a Washington pit bull ordinance); Rhoades v. City of Battle Ground, 63 P.3d 142 (2003) (upholding an exotic animals ban); Dog Federation of Wisconsin v. City of South Milwaukee, 504 N.W.2d 375 (1993) (upholding a pit bull ordinance in Wisconsin).

For instance, the First District Court of Appeals in Singer v. Cincinnati (1990), 57 Ohio App.3d 1, applied the rational basis test to a similar ordinance and found the ordinance to be constitutional. In State v. Robinson, the Court of Appeals similarly found vicious a dog ordinance passed constitutional muster.[FN19] The United States District Court for Southern Ohio upheld a pit bull ban and found a village ordinance banning the dogs to be rationally related to a legitimate government interest.[FN20]

FN19. See (1989) 44 Ohio App.3d 128; see also, City of Lima v. McFadden (June 30, 1986), Allen Appeals No. 1-85-22 unreported.

FN20. Vanater v. Village of South Point, 717 F.Supp. 1236 (1989).

The due process clause of the Fifth and Fourteenth Amendments to the U.S. Constitution require that the stature in question “bear a rational relation to a legitimate legislature goal or *14 purpose”, Exxon Corp. v. Governor of Maryland, (1978) 437 U.S. 117, cited in Garcia v. Village of Tijeras (N.M. App. 1988), 108 N.M. 116, 767 P.2d 355 unless the statute implicates a “fundamental right”.

Dog ownership is not a “fundamental right”. The United States Supreme Court has held that no federal right is violated when the state regulates pet ownership: “Property in dogs is of an imperfect or qualified nature, and they may be subjected to peculiar and drastic police regulations by the state without depriving their owners of any Federal right.” Nicchia v. New York, 254 U.S. 228, 230, 41 S. Ct. 103, 65 L. Ed 235 (1920). In fact, many courts have determined that outright bans on pit bulls are rationally related to the legitimate legislative goal of public safety. See Garcia, supra at 121.

In Sentell v. New Orleans & Carrllton Railroad (1896), 166 U.S. 698 the U.S. Supreme Court, in considering a state's power to regulate dogs, found that even if it were assumed that dogs are property in the fullest sense of the word, they would still be subject to the police power of the state and might be destroyed or otherwise dealt with as in the judgment of the legislature is necessary for the protection of its citizens. Id. at 702.

The appeals court opinion correctly noted the legislature's police power to regulate dogs, and the strong presumption of constitutionality that a statute deserve. However, the Appeals Court failed to acknowledge that the party alleging that a statute is unconstitutional must prove this assertion beyond a reasonable doubt in order to prevail See, State ex rel. Jackman v. Court of Common Pleas (1967), 9 Ohio St.2d 159; Hilton v. Toledo (1980), 62 Ohio St.2d 394; and State v. Anderson (1991), 57 Ohio St.3d 168.

Unfortunately, the Court of Appeals committed error in misapplying the rational basis test in this case and in striking down legitimate exercises of police power in the forms of *15 Revised Code Section 955.11, 955.22, and Toledo Municipal Code Section 505.14. In so doing, the Court of Appeals inadvertently but irreparably put the citizens of Toledo at risk by depriving them of the protections contemplated and lawfully executed by state and local legislators.

This Court has long been reluctant to undermine enactments of the State Legislature with findings of unconstitutionality. In State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, the Court recognized that legislative enactments are presumptively valid, that all reasonable presumptions will lean toward validity of a statute and any doubt as to constitutionality, would be resolved in favor of validity. The Defenbacher court noted that the importance of separation of powers requires the court to be deferent to the findings of legislatures as to exactly what constitutes public good or public purpose. Id. A court should be cautious, not substitute its judgment for that of the legislature.

In this State, the presumption of constitutionality is so strong it can only be overcome with proof beyond a reasonable doubt. See, State v. Saurman (1980), 64 Ohio St.2d 137.

This Court has consistently recognized that where a law does not affect the exercise of a fundamental right, it should be reviewed under the rational basis test. See for instance, Park Corporation v. City of Brook Park, 102 Ohio St.3d 166, 2004-Ohio-2237. The laws will be deemed valid on due process grounds providing they bear a real substantial relation to public health, safety, morals for the general welfare of the public and that they are not unreasonable or arbitrary. Mayer v. Bristow (2000), 91 Ohio St.3d 3.

This Court has held, likewise, that a legislature does not violate the Constitution simply because a legislative enactment results in some inequality. See, McCrone v. Bank One Corporation, 107 Ohio St.3d 272, 2005-Ohio-6505. Uider the rational basis test, a law will be upheld as long as it is not arbitrary or unreasonable. Id.

*16 In this case, the Court of Appeals correctly determined that the rational basis test was applicable. Unfortunately, the Court of Appeals misapplied that test. The Court, in its Opinion and Judgment Entry, recognized that there were disputes in the expert testimony presented by both sides. (Appx. p. 47.) The Court of Appeals then decided to believe the experts proffered by the Defendant rather than the State. In terms of day-to-day human judgment, the Court of Appeals succumbed simply to human error. It decided a case in accordance with its belief of what legislative policy should be rather than deferring policy decision to the legislature and democratic process. Unfortunately, barring reversal, the City and its population may be damaged by the Court of Appeals' mistake. Rather than correctly applying the rational basis test, which would have not weighed the evidence presented at a Municipal Court hearing in an effort to determine whether or not a legislative enactment should be repealed, the Appeals Court should have limited its inquiry to whether or not Tellings had shown beyond a reasonable doubt that the law was not in furtherance of a legitimate governmental goal and that it was arbitrary and unreasonable. The Court did something else entirely. The Court simply substituted its own judgment for that of the legislature and hence misapplied the rational basis test and improperly usurped the legislative authority.

This Court has recognized that it is a proper province of the judicial branch to interpret State and Federal Constitutions. The legislatures, rather than the courts, however, have the final say on public policy providing that say does not violate specific provisions of the State or Federal Constitution. Beagle v. Walden, 78 Ohio St.3d 59, 1997-Ohio-234. In this case, two judges out of three in the Court of Appeals substituted their judgment of public policy for that of *17 the state and municipal legislative bodies. Unintentionally, the Court of Appeals crossed the line between judicial review and interference with separation of power principles.[FN21]

FN21. This Court has recognized: “Although Ohio does not have a constitutional provision expressly stating the concept of separation of powers, ‘this doctrine is implicitly embedded in the entire framework of those sections of the Ohio Constitution that define the substance and scope of the powers granted to the three branches of state government’ [cite omitted].” State ex rel Plain Dealer v. Cleveland, 75 Ohio St.3d 31, 37, 1996-Ohio-379; see, also, State v. Hochhauser, 76 Ohio St.3d 455, 1996-Ohio-374. While these cases typically deal with the constitutional grant of authority to the state legislature, i.e., Ohio Const. Art.II §1, the legislative powers of municipality also enjoy constitutional recognition at Art. XVIII §3 of the Ohio Constitution.

Proposition of Law III:

Dogs commonly known as pit bulls possess unique and readily identifiable physical and behavioral traits, which are capable of recognition both by dog owners of ordinary intelligence and by enforcement personnel.

The Court of Appeals concluded that R.C. 955.11 (A)(4)(a)(iii) and T.M.C. 505.14(a) are unconstitutional because an owner might not think their dog looked like a pit bull. Because this might happen, the court concluded that an ordinary citizen would not understand he was breaking the law. However, in so finding, the Court of Appeals failed to properly apply the precedent of this Court.

This finding of vagueness by the Court of Appeals directly conflicts with previous decisions by other courts of appeals in Ohio. See, State v. Robinson (1989), 44 Ohio App.3d 128; Singer v. Cincinnati (1990), 57 Ohio App.3d 1; and City of Lima v. Mc Fadden (June 30, 1986), Allen App. No. 1-85-22 unreported. More importantly, the finding of the Court of Appeals that the statutes and ordinance are void for vagueness is clearly in conflict with holdings from this Court. See, State v. Anderson (1991), 57 Ohio St.3d 168; and State v. Ferguson (1991) 57 Ohio St.3d 176.

In both Anderson and Ferguson this court considered constitutional challenges to R.C. 955.11(A)(4)(a)(iii) on vagueness grounds. The Court found that the classification of dogs “commonly known as pit bull dog” as a vicious dog does not fail on vagueness grounds. *18 Anderson, supra at syllabus. In Ferguson this court held that “Appellee's conviction may not be overturned on the ground that the statutory scheme pursuant to which he was convicted violates the Due Process Clauses of the state and federal Constitutions. In State v. Anderson (1991), 57 Ohio St.3d 168, 566 N.E.2d 1224, decided this day, we held that R.C. 955.11(A)(4)(a)(iii) is not unconstitutionally void for vagueness. Specifically, we determined that the phrase ‘commonly known as a pit bull dog’ refers to a distinct set of physical and behavioral traits sufficient not only to place an ordinary dog owner on notice as to whether he is covered by the statute, but also to avert the danger of arbitrary and discriminatory enforcement of the statute. Reviewing the case at bar in light of this holding, we find that R.C. 955.11(A)(4)(a)(iii) may lawfully be applied to the Appellee and that the Appellate Court erred in reversing the Appellee's conviction on the ground that the statute is unconstitutionally void for vagueness.” Ferguson, supra 177.

Tellings never contested the dog warden's classification of his dogs as pit bulls. There is a question whether Tellings has standing to raise this vagueness issue. See, Singer v. Cincinnati, supra. at p. 4 (citing Parker v. Levy (1974), 417 U.S. 733.) In point of fact, a health inspector recognized Mr. Tellings' dogs as pit bulls, the dog warden had no difficulty in identifying Tellings dogs as pit bulls, and Tellings never contested this classification. (Appx. p. 4.)

CONCLUSION

The trial court recognized that pit bulls have specific characteristics that make them different than other dogs. For instance, pit bulls were historically bred to “bite and hold” while other dogs release after a bite. (Appx. p.36.) The trial court, like many other courts, recognized that both nationally and in the State of Ohio pit bull bites “seem to cause a disproportionate number of fatalities among the population”. (Appx. p.36.) Evidence at hearing showed that a large number of these dogs were present in urban, crowded, residential areas where small *19 children are present and that the situation was dangerous. It is against this back drop that the Legislature of Ohio and the City Council of Toledo attempted to take action in furtherance of protecting the health and welfare of the citizens of Ohio and Toledo.

In regulating pit bulls, the state and local legislatures were clearly within their constitutional right and authority and those legislative decisions should have been given deference by the Court of Appeals. Years of precedents from this Court have consistently prohibited lower courts from second guessing legislative decisions. If circumstances warrant a change, change should be sought through the democratic process.

Clearly, regulations against pit bulls, specifically, do not create the type of due process problems addressed by this Court in Cowan. Nor in light of precedent from this Court, could the Court of Appeals correctly find that the state and local ordinances would be void for vagueness.

If allowed to stand, the affect of the Court of Appeals ruling will be to prevent state and local legislatures from addressing a recognized threat to its citizens. It would deprive the state and local legislatures of the fundamental decision-making power guaranteed to them under the Constitution of Ohio. In failing to properly apply the rational basis test and the precedence of this and other courts, the Court of Appeals improperly encroached on the constitutionally defined powers of the state and local legislatures. At its core, this case involves serious issues regarding separation of powers.

In conclusion, the trial court cited a well-reasoned passage from the University of Dayton Law Review which is applicable to this case:

“Although opponents of a total ban on pit bulls argue that it is ‘unfair’ to take someone's dog away before the dog has done anything wrong, such a law is not inherently unconstitutional. Constitutionality is not determined by a ‘fairness' standard. Legislatures are permitted to act to protect the public from debilitating or possibly fatal attacks by pit bulls, even if it means taking steps that sweep more broadly in that which would be sufficient to accomplish this important goal. *20 Arguably, some families own docile pit bulls who have never threatened anybody; possibly their violent instincts have been effectively deluded over succeeding generations. The undeniable fact remains, however, that a disproportionate number of pit bulls have been involved in very serious attacks. Clearly, a ban on ownership of pit bulls, whether under inclusive or over inclusive, bears a relation to the legitimate legislative goal of public safety.” University of Dayton Law Review, Vol. 13.2 (1988), pp. 298, 291. (Appx. p.39.)

The decision below must be reversed. Any other result is simply unthinkable. Karla Hamlin testified at the hearing below that a situation where many pit bulls were kept in the City was like a “time bomb.” If Ohio cities cannot protect their citizens from the dangerous threat posed by pit bulls, it is only a matter of time before the “time bomb” goes off.

Appendix not available.

CITY OF TOLEDO, Appellant, v. Paul TELLINGS, Appellee.

2006 WL 3385307 (Ohio)