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

*i TABLE OF CONTENTS

TABLE OF CONTENTS ... i

TABLE OF AUTHORITIES ... iii

INTRODUCTION ... 1

STATEMENT OF AMICUS INTEREST ... 4

STATEMENT OF THE CASE AND FACTS ... 4

ARGUMENT ... 9

Amicus Curiae Attorney General's Proposition of Law No. 1:

Determining whether a dog belongs to the breed of “pit bull” will not trigger the protections of procedural due process ... 9

A. Under a Mathews balancing analysis, the additional procedures required by the Sixth District are unwarranted ... 9

1. Tellings does not have a sufficient private interest to justify the imposition of additional procedures upon this statutory scheme ... 8

2. The State's interest in regulating and enforcing vicious-animal laws is strong and would be unnecessarily complicated by requiring additional procedures ... 9

3. The value of additional procedures in this statutory scheme is minimal or non-existent ... 13

Amicus Curiae Attorney General's Proposition of Law No. 2:

The Ohio General Assembly had a rational basis for including the breed of “pit bull” within the definition of “vicious dogs.” 9

A. The government may rationally differentiate among dog owners in the interest of protecting the public from damage and injury caused by vicious dogs ... 9

B. The court below, in finding that no rational basis supported the laws in question, improperly overruled the Ohio General Assembly's legislative judgment ... 15

*ii Amicus Curiae Attorney General's Proposition of Law No. 3:

A statute that defines a dog by using the name of the breed is not impermissibly vague ... 9

A. A person of reasonable intelligence can determine whether the animal that they own belongs to the breed “pit bull,” and describing a dog by naming the breed to which it belongs will not impermissibly broaden law-enforcement discretion, nor will it lead to arbitrary and discriminatory enforcement ... 9

B. The law imposes a duty on each dog owner to ascertain whether her dog is a “pit bull,” just as similar duties are routinely imposed by other strict liability statutes ... 15

CONCLUSION ... 27

CERTIFICATE OF SERVICE ... unnumbered

*iii TABLE OF AUTHORITIES

Cases

American Dog Owners Ass'n, Inc. v. Dade County (S.D. Fla. 1989), 728 F. Supp. 1533 ... 8, 25

Benjamin v. Columbus (1957), 167 Ohio St. 103 ... 14

Bilida v. McCleod (D.R.I. 1999), 41 F. Supp. 2d 142 ... 12

City of Cleburne v. Cleburne Living Center (1986), 473 U.S. 432 ... 24

City of Toledo v. Tellings, 2006 Ohio App. Lexis 884, 2006-Ohio-975 ... passim

Clements v. Fashing (1982), 457 U.S. 957 ... 19

Dandridge v. Williams (1970), 397 U.S. 471, 485 ... 22

Downing v. Cook (1982), 69 Ohio St. 2d 149 ... 14

Federal Deposit Insurance Corp. v. Mallen (1988), 486 U.S. at 240 ... 16

FCC v. Beach Communications (1993), 508 U.S. 307 ... 22

Goss v. Lopez (1975), 419 U.S. 565 ... 16

Hearn v. Overland Park (1989), 244 Kan. 638, 772 P.2d 758 ... 8, 25

Heller v. Doe (1993), 509 U.S. 312 ... 19

Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489 ... 26

In re Oliver (1948), 333 U.S. 257 ... 13

*iv Joint Anti-Fascist Refugee Committee v. McGrath (1951), 341 U.S. 123 ... 13

Leis v. Flynt (1979), 439 U.S. 438 ... 12

Mathews v. De Castro (1976), 429 U.S. 18 1 ... 22

Mathews v. Eldridge (1976), 424 U.S. 319 ... passim

Michigan Wolfdog Ass'n v. St. Clair County (D. Mich. 2000), 122 F. Supp. 2d 794 ... 11

Miller v. California (1973), 413 U.S. 15 ... 26

Minnesota v. Clover Leaf Creamery Co. (1981), 449 U.S. 456 ... 22

New York City Friends of Ferrets v. City of New York (S.D.N.Y 1995), 876 F.Supp. 52 9 ... 21

Nicchia v. New York (1920), 254 U.S. 228 ... 11

Nordlinger v. Hahn (1992), 505 U.S. 1 ... 21

One 1958 Plymouth Sedan v. Pennsylvania (1965), 380 U.S. 693 ... 12

Reno v. Flores (1993), 507 U.S. 292 ... 9

Romer v. Evans (1996), 517 U.S. 620 ... 22

Sam & Ali, Inc. v. Ohio Dep't of Liquor Control (6th Cir. 1998), 158 F.3d 397 ... 21

Sentell v. New Orleans & C. R. Co. (1897), 166 U.S. 698 ... passim

*v Singer v. Cincinnati (1st Dist. 1990), 57 Ohio App. 3d 1 ... 6, 8, 25

State v. Anderson (1991), 57 Ohio St. 3d 168 ... passim

State v. Cowan, 103 Ohio St.3d 144, 2004-Ohio-477 ... passim

State v. Ferguson (1991), 57 Ohio St. 3d 176 ... 25

State v. Hochhausler, 76 Ohio St. 3d 455, 1996-Ohio-374 ... 9, 10

State v. Koss (1990), 49 Ohio St. 3d 2 13 ... 23

State v. Kominis (9th Dist. 1943), 73 Ohio App. 204 ... 26, 27

State v. Morello (1959), 169 Ohio St. 213 ... 27

State v. Peters (Fla. App. 1988), 534 So.2d 760 ... 8, 25

State v. Robinson (12th Dist. 1989), 44 Ohio App. 3d 128 ... 6, 8, 25

State v. Thompson (2002), 95 Ohio St. 3d 264, 2002-Ohio-2124 ... 22

State v. Williams (1978), 55 Ohio St. 2d 82 ... 15

State v. Williams (2000), 88 Ohio St. 3d 513 ... 19

State ex rel. Rear Door Bookstore v. Tenth District Court of Appeals (1992), 63 Ohio St. 3d 354 ... 26

United States v. Carolene Products Co. (1938), 304 U.S. 144 ... 20

Vanater v. South Point (S.D. Ohio 1989), 717 F. Supp. 1236 ... 6, 14

*vi Vance v. Bradley (1979), 440 U.S. 93 ... 23

Constitutional Provisions, Statutes, and Rule

Ohio const., art. I, § 19 ... 14

R.C. 955.11 ... passim

R.C. 955.22 ... passim

Toledo Municipal Code 505.4 ... passim

*1 INTRODUCTION

This case involves Ohio's and Toledo's statutory schemes for the regulating and controlling vicious dogs, including the breed known as pit bulls. Specifically under review are two state laws, Revised Code 955.11 and 955.22, and one Toledo ordinance, Toledo Municipal Code 505.14. The first state law, Revised Code 955.11(A)(4)(a)(iii), in relevant part, defines vicious dogs, and includes pit bulls in that category (Ohio's “pit bull classification”). This definition is relied upon by various other laws, including R.C. 955.22 and T.M.C. 505.14. Revised Code 955.22 requires that owners of vicious dogs carry liability insurance (Ohio's “dog-insurance law”). Toledo Municipal Code 505.14 prohibits any person from owning more than one adult pit bull within the City of Toledo (Toledo's “one-dog limit”). The question before the Court is whether these laws are constitutional, as Defendant-Appellee Paul Tellings claims that the laws violate procedural due process, equal protection, and substantive due process. The Court should find the laws constitutional, because these laws are a rational response to the problems caused by vicious dogs, and policy decisions regarding such laws are entrusted to the General Assembly and to local legislative bodies, such as Toledo's City Council.

The problems presented by vicious dogs are surely real ones, and the Court has previously recognized the seriousness of these problems, and the legitimacy of a legislative response. Shortly after Ohio's laws were passed, the Court reviewed certain provisions, and explained that the government had good reason to exercise its police powers to control ownership of pit bulls, as the breed posed a “special danger” to the public. State v. Anderson (1991), 57 Ohio St. 3d 168, 170. In Anderson, the Court pointed out that the pit bull epidemic of recent years had been marked by a rapid rise in severe injuries and deaths from attacks by these dogs, which “besiege their victims relentlessly, until severe injury or death results.” Id. As pit bull attacks grabbed public attention throughout Ohio and the nation, state and local legislatures began to recognize *2 the special dangers posed by pit bulls, and as explained below, courts in Ohio and elsewhere largely agreed that legislative responses were warranted. Here, both Ohio and Toledo acted for good reason, and that should be enough to end the case, as all we need show is a rational basis for these laws.

The sole issue is the constitutionality of Ohio's and Toledo's law, as no one contests that Telling did violate the laws. He was charged with failure to have liability insurance under Ohio's dog-insurance law, and with owning more than one vicious dog under Toledo's one-dog limit. The Toledo Municipal Court found Tellings guilty of violating those laws. On appeal, the Sixth District Court of Appeals overturned his convictions, as it found all three laws-both the Ohio insurance law and the Toledo one-dog limit, as well as Ohio's underlying pit-bull classification-were unconstitutional. The Attorney General, as amicus, now joins the City of Toledo in asking this Court to reverse the Sixth District's decision, as the court below was wrong when it found these laws unconstitutional.

First, the laws at issue do not violate procedural due process. Procedural due process claims are measured under a three-factor balancing analysis under Mathews v. Eldridge (1976), 424 U.S. 319, 334-335. Under the Mathews test, Tellings does not have a sufficient private interest to justify the imposition of additional procedures upon this statutory scheme, whereas the State's interest in regulating and enforcing vicious animal laws is strong. Moreover, the statutes are penal in nature, so Tellings was already entitled to the fullest panoply of due process protections available in the law. That is, he receives all the process that is due in the criminal prosecution. *3 The imposition of additional procedures would unnecessarily burden law enforcement's ability to recommend charges and seize the fruits, instrumentalities and evidence of crimes.

The laws also satisfy constitutional standards on equal protection and substantive due process grounds. Vicious dog laws are rationally related to many conceivable legitimate purposes of government, including protection of people and property from dog attacks. Moreover, the court below improperly overruled the General Assembly's fact-finding, and the court impermissibly substituted its policy judgment for that of the lawmakers.

Further, the laws are not void for vagueness merely because the state and city legislators used the term “pit bull.” As this Court and others have already held, a person of reasonable intelligence can determine whether the animal she owns belongs to the breed “pit bull.” And describing a dog by naming the breed to which it belongs will not impermissibly broaden the discretion of law enforcement, so it will not lead to arbitrary enforcement.

For all these reasons, the Court should reject all of Tellings's constitutional claims, and it should uphold the Ohio statute's and the Toledo ordinance.

STATEMENT OF AMICUS INTEREST

Ohio Attorney General Jim Petro acts as Ohio's chief law officer. R.C. 109.02. Accordingly, he has a strong interest in ensuring rigorous and consistent enforcement of Ohio's criminal laws, including those regulating ownership of vicious dogs. Additionally, the Attorney General has a strong interest in having the constitutionality of Ohio statutes upheld. In Ohio, pit bulls are included in the definition of vicious dogs for good reason, and Ohio's pit bull classification, which the court below found unconstitutional, is the primary definition for “vicious dogs” as used by various other laws and regulations. Further, the State's ability to charge suspects and seize the evidence, fruits, and instrumentalities of crime will be adversely *4 affected if the State is required to make a preliminary determination as to an element of a criminal offense.

STATEMENT OF THE CASE AND FACTS

The State agrees with the facts as stated by the City of Toledo in its brief. In addition, we highlight the following.

The City of Toledo enacted its one-dog limit in 1999. Specifically, the law prohibits anyone from owning more than one adult pit bull within city limits, and a violation is a misdemeanor. T.M.C. 505.14. Tellings owned three of them. City of Toledo v. Tellings, 2006 Ohio App. Lexis 884, 2006-Ohio-975, ¶ 2 (attached to Toldeo's Supplement at S-3-S-30). He was cited for violating the Toledo ordinance, and for violating Ohio's dog-insurance law, which requires owners of pit bulls to carry liability insurance. Id. at ¶ 3.

In his defense before the Toledo Municipal Court, Tellings challenged the constitutionality of Toledo's one-dog limit, Ohio's dog-insurance law, and Ohio's pit bull classification. Both Toledo's one-dog limit and Ohio's dog-insurance law rely on the latter for its definition of “vicious dogs,” which includes “pit bulls” in that definition. Tellings argued that those laws violated his rights to equal protection and due process. City of Toledo v. Paul Tellings (July 8, 2004), Toledo Mun. Ct. No. CRB-02-15267, unreported, at 2 (“Municipal Op.”) (attached to Toldeo's Supplement at S-33-S-41). In a five-day long evidentiary hearing before the Toledo Municipal Court, the City called four expert witnesses, and Tellings called twelve experts. Tellings, 2006-Ohio-975, at ¶¶ 3-20. The trial court determined that the challenged laws were constitutional, and that Tellings had violated both Toledo's one-dog limit and Ohio's dog-insurance law. (Of course, Tellings was not charged with violating Ohio's pit bull classification, but that law is implicated to the extent that the other laws rely upon its definition of “vicious dogs.”) Municipal Op. at 9.

*5 A few months after the trial court's decision, the Ohio Supreme Court decided State v. Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777. In a four-to-three decision, the Cowan Court found that the labeling of Cowan's dogs as “vicious” violated procedural due process, and struck down Ohio's dog-insurance law insofar as “it fails to provide dog owners a meaningful opportunity to be heard on the issue of whether a dog is ‘vicious' or ‘dangerous' as defined in R.C. 955.11(A)(1)(a) and (A)(4)(a).” Id. at ¶ 13. Cowan, however, was not a pit bull case, as it did not involve the classification of pit bulls as vicious.

Shortly after this Court decided Cowan, Tellings appealed his own case to the Sixth District Court of Appeals. Tellings's Notice of Appeal (attached to Toldeo's Supplement at S-31-S-32. He challenged the constitutionality of Toledo's one-dog limit, Ohio's dog-insurance law, and Ohio's pit bull classification. Tellings, 2006-Ohio-975, at ¶¶ 34-42. The Sixth District Court of Appeals, relying on Cowan, struck down the laws as unconstitutional on procedural due process grounds. Tellings, 2006-Ohio-975, at ¶¶ 48-49. The Sixth District went on to find that the laws bore no rational relationship to a legitimate state interest, and therefore invalidated them on equal protection and due process grounds as well. Tellings, 2006-Ohio-975, at ¶ 69. Lastly, the Sixth District held the laws void for vagueness. Tellings, 2006-Ohio-975, at ¶ 76.

The City of Toledo asked this Court to review the case, and the Court agreed. The Attorney General, as amicus curiae supporting Toledo, urges the Court to reverse the decision below.

*6 ARGUMENT

This Court and others have already ruled on the constitutional issued raised by Tellings. In State v. Anderson, the Court found that Ohio's pit bull classification is not unconstitutionally vague regarding what is meant by a “pit bull” in the definition of “vicious dog.” Anderson, 57 Ohio St. 3d at 174. The Anderson Court's treatment of substantive due process issues also suggests that Ohio's pit bull classification does not violate procedural due process, although the Court did not directly address that question. See id (“Given the urgent circumstances under which pit bull-related arrests are generally executed, it would be counterproductive to compel officers to do extensive research into the background of a particular dog prior to arrest.”)

Similarly, the Twelfth District Court of Appeals has held that Ohio's pit bull classification and Ohio's dog-insurance law were not unconstitutionally vague with regard to the term “pit bull.” State v. Robinson (12th Dist. 1989), 44 Ohio App. 3d 128, 133 (“We conclude that R.C. 955.22 and 955.11 adequately and sufficiently define ‘pit bull dog’ so that ordinary individuals may conduct themselves to avoid that which is prohibited by law.”)

In a well-reasoned decision, a federal court in Ohio upheld an ordinance that outlawed ownership of pit bulls entirely. Vanater v. South Point (S.D. Ohio 1989), 717 F. Supp. 1236. That court found the ordinance a valid exercise of police power, that it had a rational basis, that it was not void for vagueness or overbreadth. Id. Similarly, the First District Court of Appeals upheld a Cincinnati ordinance banning ownership of pit bulls within the city, stating that such a ban did not violate equal protection or due process guarantees. Singer v. Cincinnati (1st Dist. 1990), 57 Ohio App. 3d 1, 3.

But in 2004, in State v. Cowan, this Court struck down other parts of Ohio's vicious-dog law-not the pit bull classification-on procedural due process grounds. 2004-Ohio-4777. In Cowan, the defendant's dogs had attacked neighbors and, after several warnings, the dog warden *7 labeled the dogs “vicious dogs.” Cowan was charged under R.C. 955.22 with various misdemeanors including failing to confine a vicious dog, failing to restrain a vicious dog, and failing to obtain liability insurance for a vicious dog. The Cowan Court found R.C. 955.22 unconstitutional insofar as the statute gave no opportunity for hearing on the issue of whether the dogs were “vicious,” as the dog warden claimed they were, before Cowan faced criminal charges. Id. at ¶ 13.

The three dissenting Justices in Cowan pointed out that the statute is penal, so Cowan had a jury trial. Therefore, procedural due process was satisfied, because the State had to show that the dogs were “vicious dogs” as an element of the offenses charged, and because the animals were not removed until after the trial (therefore not depriving Cowan of property until the end of the trial). See id. at ¶¶ 22, 26 (Moyer, C.J., dissenting); and id. at ¶ 50 (O'Donnell, J., dissenting). While the Attorney General believes that the Cowan dissenters were right, the Court need not revisit Cowan in this case. That is so for several reasons, including that the Cowan Court did not specifically rule on Ohio's pit bull classification, which automatically includes the breed of “pit bulls” in the definition of “vicious dogs.” Instead, Cowan involved the classification of dogs as vicious based on two other provisions, R.C. 955.11(A)(4)(a)(i) and (ii), which involve classifying a dog as vicious after the dog has caused injury. Cowan did not address the separate classification of pit bulls as vicious under subsection (iii) of R.C. 944.1 1(A)(4)(a). Thus, because the Court did not reach that provision, it remains presumed as constitutional.

Against this backdrop, the Sixth District essentially swept aside the legislative determination that pit bulls pose a danger to public safety, discounted a host of contrary court decisions “outdated”[FN3] (one of them dated all the way back to 1988), and expanded the holding of *8 Cowan to engulf Ohio's pit bull classification. The court below agreed with all of Tellings's constitutional challenges, and struck down Ohio's pit bull classification, Ohio's dog-insurance law, and Toledo's one pit bull rule on the grounds of procedural due process (relying on Cowan), equal protection, and substantive due process. This Court should reverse on all of those issues.

FN3. The court below questioned the validity of Anderson and other cases because, in the appeals court's view, this and other courts relied on “outdated information” regarding pit bulls. The court explained:

As the evidence presented in this case demonstrates, previous cases involving “vicious dog” laws, especially from the late 1980's and early 1990's, relied on what is now outdated information which perpetuated a stereotypical image of pit bulls. See State v. Anderson, 57 Ohio St. 3d 168, 566 N.E.2d 1224, citing to Singer v. Cincinnati (1990), 57 Ohio App. 3d 1, 566 N.E.2d 190; State v. Robinson (1989), 44 Ohio App. 3d 128, 541 N.E.2d 1092; Hearn v. Overland Park (1989), 244 Kan. 638, 772 P.2d 758; Am. Dog Owners Ass'n, Inc. v. Dade Cty. (S.D. Fla.1989), 728 F. Supp. 1533, 1537; and State v. Peters (Fla. App.1988), 534 So.2d 760. These cases, due in part to unavailable, scientifically based evidence or expert testimony about the breed, branded all pit bulls as “vicious” on the basis of what was known or believed at that time.

City of Toledo v. Tellings, 2006 Ohio App. Lexis 884, 2006-Ohio-975, at ¶ 63.

Amicus Curiae Attorney General's Proposition of Law No. 1:

Determining whether a dog belongs to the breed of “pit bull” will not trigger the protections of procedural due process.

While Cowan might, at first blush, seem to justify the decision below, a close look shows that Cowan does not mandate invalidation of the state and city laws at issue. This case differs from Cowan on both the facts and the law. In Cowan, the Court held that before a dog could be determined to be “vicious,” and before the owner of that dog could be charged with a crime, procedural due process requires that the owner have notice and opportunity to be heard. Finding that the statutes at issue provided no such procedures, the Court held that the statutes were unconstitutional. Cowan, 2004-Ohio-4777 at ¶ 13.

Relying on Cowan, the court below found that Ohio's pit bull classification, Ohio's dog-insurance law, and Toledo's one-dog limit unconstitutionally deprived Tellings of due process *9 procedures when he was not able, before being charged with a crime, to rebut the statutory determination that his pit bulls were vicious.[FN4] Tellings, 2006-Ohio-975, at ¶¶ 48-49. Cowan is distinguishable, because here, the determination was not whether the dog met the statutorily-enumerated elements of a “vicious dog” found in R.C. 955.11(A)(4)(a)(i) and (ii) as in Cowan. Instead, the issue here is whether a dog is a “vicious dog” simply by virtue of belonging to the breed known as “pit bull,” as Ohio classifies pit bulls as vicious under a separate provision, R.C. 955.11(A)(4)(a)(iii). This distinction matters, because the concern in Cowan was whether it violated due process for dog wardens to preliminarily classify dogs as vicious. But here, the General Assembly has made a classification as to pit bulls generally, so there is no concern about administrative decision-making case-by-case. Of course, Tellings and others may not like the across-the-board classification, but the key point is that the issue here involves that legislative judgment, not a legislative judgment to empower the executive branch to perform classifications, as in Cowan.

FN4. Notably, the Sixth District's procedural due process analysis rests on the assumption that it is inherently difficult to identify a pit bull, so therefore, the owner should have an opportunity to argue against such identification. But this argument is merely the substantive due process argument “recast” as an issue of procedural due process, so this Court should deny it for the same reasons discussed below regarding substantive due process. See below at ; Reno v. Flores (1993), 507 U.S. 292, 308.

Because Cowan does not apply here, the Court should review Tellings's procedural due process claim under the usual Mathews framework. That is, when a challenge is made on procedural due process grounds, the United States Supreme Court and this Court have determined that the proper test to determine whether the State and Federal Constitutions have been violated is the balancing test announced in Mathews v. Eldridge (1976), 424 U.S. 319, 334-335. See State v. Hochhausler (1996), 76 Ohio St. 3d 455, 459.

*10 Under a Mathews analysis of what procedures are constitutionally required, a preliminary hearing on whether certain dogs are pit bulls is not only unwarranted, but would also unnecessarily burden the State's interest in protecting person and property from vicious dogs. Tellings, like other dog owners, had a very weak property interest, if any interest at all. Further, dog owners' interests are far outweighed by the State's interest in regulating vicious dogs, and immediate and effective enforcement of such regulation. The risk of erroneous deprivation of interest is minimal in light of the fact that Tellings was already afforded the procedural protections of a criminal jury trial. Thus, additional procedures would also not add any significant value under the procedural due process analysis.

A. Under a Mathews balancing analysis, the additional procedures required by the Sixth District are unwarranted.

A person may not be deprived of life, liberty, or property without due process of the law. Hochhausler, 76 Ohio St. 3d at 459. In the context of procedural due process, this means that a person must be given notice of the action against his property and a meaningful opportunity to respond. Hochhausler, 76 Ohio St. 3d at 459. Where such a process is not followed, or is not carried out in a satisfactory way, the law will fail to provide due process protections, and additional procedures may be found necessary. Mathews, 424 U.S. at 334-335

The current framework for deciding what procedures are constitutionally due under the Federal and Ohio Constitutions is found in Mathews, 424 U.S. at 335; Hochhausler, 76 Ohio St. 3d at 459. The Mathews Court held that the procedures required by due process could be identified in each given case by balancing three factors: (1) the private interest that would be affected by government action; (2) the government's interest; and (3) “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.” Mathews, 424 U.S. at 335. Here, a Mathews *11 analysis shows that the “additional or substitute procedural safeguards” of notice and a hearing on whether the animals in question are actually pit bulls is not constitutionally required.

1. Tellings does not have a sufficient private interest to justify the imposition of additional procedures upon this statutory scheme.

The first element of the Mathews analysis is a private interest that is protected by the Fifth and Fourteenth Amendments. Mathews, 424 U.S. at 332. These private interests may come in the form of a “liberty” interest or a “property” interest. Id. However, neither interest is sufficient to justify adding procedures to this statutory scheme.

To the extent that Tellings had a property interest in the pit bulls, the private interest in dog ownership is qualified, subject to the lawful exercise of the police powers of the state. Sentell v. New Orleans & C. R. Co. (1897), 166 U.S. 698, 701. Property interests in dogs have been long held to be “limited” or “qualified” property rights. Sentell, 166 U.S. at 701; Nicchia v. New York (1920), 254 U.S. 228, 230; Anderson, 57 Ohio St. 3d at 170. Dogs are recognized as property to the extent that that “an action will lie for their conversion or injury.” Sentell, 166 U.S. at 701. However, a property interest in dogs is “limited” in the sense that dog ownership is subject to the police powers of the state. Dogs may be seized or destroyed without implicating any “fundamental constitutional rights.” Michigan Wolfdog Ass'n v. St. Clair County (D. Mich. 2000), 122 F. Supp. 2d 794, 803; Vanater, 717 F. Supp. at 1241 (“The United States Supreme Court has held that government retains great power and discretion to control, prohibit and even destroy dogs without offending the constitutional rights of their owners.”)

As the United States Supreme Court explained in Sentell, even if dogs were “property in the fullest sense,” they would still be subject to regulation (and even destruction) if the legislature finds it necessary to protect the public. Sentell, 166 U.S. at 704-705. The Court further said the police power of a state to “interfere with private property, and even order its destruction, *12 is as well settled as any legislative power can be, which has for its objects the welfare and comfort of the citizen.” Sentell, 166 U.S. at 704-705. This Court cited this language from Sentell with approval, in Anderson, 57 Ohio St. 3d at 170. Thus, the property interest that Tellings had in his animals is subordinate to the valid exercise of the police power by the legislature.

Moreover, Tellings does not appear to have a property interest in the disputed animals at all. It is well-established that the federal Constitution does not create property interests, and thus a property interest must be shown from some independent source, like state law. Leis v. Flynt (1979), 439 U.S. 438, 441-443. In Toledo, T.M.C. 505.14 prohibited the ownership of more than one adult pit bull. Thus, citizens in Toledo have a legitimate entitlement to property in, at most, one pit bull. Tellings owned three. After the citation, two of these dogs were removed, leaving Tellings with one pit bull. Tellings had no property interest under law in the other two dogs, which were taken from him pursuant to Toledo's one pit bull rule. Those dogs were unlawful items of contraband, the mere possession of which constituted a crime. See Bilida v. McCleod (D.R.I. 1999), 41 F. Supp. 2d 142, 151 (holding that state law required a license for ownership of a raccoon, that the owner had no property interest in an unlicensed animal, and that due process was not violated when the raccoon was summarily seized and destroyed). Contraband, such as these dogs, may be seized by law enforcement without any expectation of return to the party from whom it is seized. One 1958 Plymouth Sedan v. Pennsylvania (1965), 380 U.S. 693, 699. In fact, if the dogs had been retuned, Tellings would have been immediately in violation of the law again.

Tellings has a liberty interest here, as criminal penalties would attach to a conviction under Ohio's dog-insurance law or Toledo's one pit bull rule. However, this liberty interest is already fully protected by a process that affords the fullest measure of procedural protections under our *13 system of law; Tellings had the right to a criminal trial before a jury of his peers. The procedures involved in criminal proceedings offer a person the full panoply of due process protections under our system of laws. Joint Anti-Fascist Refugee Committee v. McGrath (1951), 341 U.S. 123, 161-162 (Frankfurter, concurring); In re Oliver (1948), 333 U.S. 257, 273-274. Criminal charges, however, do not implicate a liberty interest until charges are brought, and at that point, the protections of the criminal justice system provide all the process that is due. But pre-charge, no added procedures are needed under Mathews. The notice provided by the statute and the opportunity to be heard in a criminal proceeding afford sufficient safeguards against being charged with an offense.

And again, once charges are brought, due process is satisfied by many procedural protections built into our criminal justice system. At a criminal trial, the State would be required, as an element of the offenses cited, to prove beyond a reasonable doubt that Tellings's dogs were pit bulls. The statutory scheme regarding vicious dogs provides that vicious dogs may be destroyed upon court order after the dog owner has been found in violation of certain provisions of the Revised Code. R.C. 955.99. Thus, the permanent deprivation of property would not occur until after judicial resolution of the owner's criminal culpability and the dog's viciousness.

2. The State's interest in regulating and enforcing vicious-animal laws is strong and would be unnecessarily complicated by requiring additional procedures.

The government has a host of interests at stake, including the power to protect the public from vicious dogs, maintenance of the ability to seize the fruits and instrumentalities of crime, maintenance of the ability to efficiently determine and charge violations of law, and the ability to immediately and efficiently contain dangerous animals.

Foremost among the State's interests is the ability to exercise police powers related to public health, safety and welfare. As the Ohio Constitution recognizes, private property is *14 subordinate to a valid exercise of the police power of the state. Ohio Const. Art. I, § 19 (“Private property shall ever be held inviolate, but subservient to the public welfare.”); see also Vanater, 717 F. Supp. at 1241. Regulation of dogs is within the police power and it is up to the legislature to determine whether such laws are necessary to protect the public. Vanater, 717 F. Supp. at 1241 (citing Benjamin v. Columbus (1957), 167 Ohio St. 103, and Downing v. Cook (1982), 69 Ohio St. 2d 149).

The State is charged with protecting its citizens from dog attacks, and this interest has been recognized as significant by many courts. See Sentell, 166 U.S. at 704; Vanater, 717 F. Supp. at 1241 (“The control of dogs falls within the ‘public health’ and ‘safety’ provisions.... government retains great power and discretion to control, prohibit and even destroy dogs without offending the constitutional rights of their owners.”); Anderson, 57 Ohio St. 3d at 170 (“Among the regulations which have been upheld as legitimate exercises of police power are those regulations addressing the ownership and control of dogs ... as a result of breeding, training, and abuse, there are dogs that pose a grave threat to human health and safety.”). Here, both the state and city have determined that vicious dogs, and in particular pit bulls, pose a serious danger to the health, welfare, and safety of citizens, and have therefore closely regulated the ownership of such animals. Courts should not substitute their own judgment on such issues for that of the lawmakers, absent a showing of “a clear and palpable abuse of that power.” Downing, 69 Ohio St. 2d at 151.

In addition to our interest in protecting the public, the State also has a strong interest in maintaining the authority to seize the fruits, instrumentalities and evidence of crime, whether with or without a warrant, when such a seizure is supported by probable cause. The extra procedural requirements imposed by the Sixth District would unnecessarily interfere with this *15 well-established power. Under the laws at issue here, police should be able to seize pit bulls as evidence of violation of law with a warrant pursuant to Ohio Rule of Criminal Procedure 41, or without, if the search fell within an exception to the warrant requirement. See, e.g., State v. Williams (1978), 55 Ohio St. 2d 82, 84 (explaining the “plain view exception”). The constitutional requirement in a seizure under these laws is that there must be “probable cause” to believe that the dogs are “evidence ... contraband, the fruits of crime, or things otherwise criminally possessed; or ... weapons or other things by means of which a crime has been committed or reasonably appears about to be committed.” Ohio Rule of Criminal Procedure 41; Illinois v. Gates (1983), 462 U.S. 213, 238. If there is such probable cause, then the police may seize the animals and retain them while criminal proceedings proceed.

The procedures found necessary by the Sixth District would unnecessarily complicate the seizure of pit bulls, as evidence or otherwise, until the owner has had notice and opportunity to respond to the determination. Such additional procedures would require a pre-seizure hearing on whether the dogs are pit bulls (or otherwise vicious), above and beyond the existing requirement of a finding of probable cause. This would severely limit the police power of the state to respond to dangerous situations. As this Court recognized in Anderson, an officer need not inquire into an animal's pedigree before making an arrest, because the “urgent circumstances” under which pit bulls are seized demand prompt action, and a pre-arrest fact inquiry would render the laws impotent. Anderson, 57 Ohio St. 3d at 174. “Allowing the officer to execute the arrest based on observations of the dog's appearance and behavior leads to a rational administration of the statute.” Id.

Similarly, the Sentell Court explained the nature of the State's power to act in dangerous situations without offending due process:

*16 ... meats, fruits and vegetables do not cease to become private property by their decay; but it is clearly within the power of the State to order their destruction in times of epidemic, or whenever they are so exposed as to be deleterious to the public health. There is also property in rags and clothing; but that does not stand in the way of their destruction in case they become infected and dangerous to the public health. No property is more sacred than one's home, and yet a house may be pulled down or blown up by the public authorities, if necessary to avert or stay a general conflagration, and that, too, without recourse against such authorities for the trespass.

Sentell, 166 U.S. at 704-705. Thus, when property is dangerous to the health, welfare and safety of the public, it may be properly seized or destroyed in a valid exercise of police powers without infringing upon the rights of the property owner.

Moreover, the State has an important interest not only in the seizure of the fruits, instrumentalities, and evidence of crime, but also in the ability of law enforcement to determine when a crime has been committed, to issue warnings, and to recommend criminal charges. As Chief Justice Moyer reasoned in his dissent in Cowan, law enforcement must always make the initial determination that the accused has violated the law, and must make charges based on that determination. Cowan, 2004-Ohio-4777 at ¶ 31 (Moyer, C.J., dissenting). Further, that dissent explained that major problems could result from requiring hearings in preliminary criminal investigations: “The unintended consequences of such a holding would wreak havoc in the administration of criminal justice.” Id.

Furthermore, the United States Supreme Court has already recognized that the notice and opportunity to be heard can occur after the deprivation of property under certain urgent circumstances. Goss v. Lopez (1975), 419 U.S. 565. Similarly, in Federal Deposit Ins. Corp. v. Mallen, the United States Supreme Court held that: “An important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation.” Mallen (1988), 486 U.S. at 240. Surely, the possession of dangerous *17 animals poses the type of immediate and ongoing threat that will justify some deprivation of interest before a hearing, even if the Court finds that the government lacks the police power or the criminal authority to otherwise seize such animals.

3. The value of additional procedures in this statutory scheme is minimal or nonexistent.

The value of the additional procedures required by the Sixth District is minimal at best, and in fact, those procedures may offer no benefit at all. First, as noted above, Tellings is given the full measure of due process protections by the penal nature of the offenses involved. And, under the Revised Code, no dog owner would be permanently deprived of his property unless and until it was decided, in court, and beyond a reasonable doubt, that his dogs were vicious. R.C. 955.99. The addition of extra procedures would not reduce the risk of the erroneous deprivation of rights in light of these existing protections.

Thus, under the Mathews balancing analysis, the value of additional procedural protections is minimal at best, because the dog owner is already given the procedures of notice and opportunity to be heard on whether certain animals are pit bulls in a criminal trial.

In sum, the Sixth District found that the existing criminal procedures for the laws at issue were insufficient to satisfy the procedural demands of due process, and that Tellings was entitled to notice and opportunity to respond to the charge that his dogs were pit bulls (and consequently vicious dogs), before being charged criminally. However, such additional procedures are not warranted. Under the proper balancing of interests, the government's interest in protecting the health, safety, and welfare of its citizens far outweighs the limited property rights that Tellings may have had in his animals. Moreover, the addition of an extra notice and opportunity to be heard (as to whether one's dog is a pit bull), before the notice and opportunity to be heard in a criminal trial, will not reduce the risk of erroneous deprivation of rights.

*18 Amicus Curiae Attorney General's Proposition of Law No. 2:

The Ohio General Assembly had a rational basis for including the breed of “pit bull” within the definition of “vicious dogs.”

The court below, considering equal protection and due process together, invalidated the laws at issue, and that conclusion was wrong. The appeals court acknowledged that “protection of property and people from injuries by dogs is clearly a legitimate governmental interest.” But in the court's view, the laws at issue had no rational relationship to this purpose, because the court found “no evidence that pit bulls are inherently dangerous or vicious.” Tellings, 2006-Ohio-975 at ¶¶ 65-66.

The Sixth District's equal protection and due process analysis suffers two major flaws. First, although the Sixth District properly identified the proper standard of review, namely “rational basis” review, Tellings, 2006-Ohio-975 at ¶ 55, it misapplied that analysis when it held that the General Assembly had no rational reason to include pit bulls in the category of vicious dogs, and the court improperly narrowed the conceivable scope of legitimate government purpose to the state interest in “protecting property and people from vicious dogs.” Tellings, 2006-Ohio-975 at ¶ 56. Second, the Sixth District improperly engaged in judicial reweighing of the facts regarding pit bulls, thereby usurping the authority of the lawmakers.

A. The government may rationally differentiate among dog owners in the interest of protecting the public from damage and injury caused by vicious dogs.

Equal protection and due process are, of course, protections for people, not dogs. Thus, the question for review is whether a rational basis and legitimate purpose exist for the law's differential treatment of dog owners. This means that the question of whether pit bulls are inherently vicious, which was central to the reasoning of the court below, is merely one of many factors to consider when analyzing the laws' impact on citizens. Moreover, this means that if a few bad pit bulls (or their owners) spoil the breed, the breed may be “discriminated against” *19 without offending the Ohio or Federal Constitution, unless and until such discrimination affects the constitutional rights of their owners.

Of course, dog ownership is not a fundamental right, so, under either due process or equal protection, the laws here should be upheld if they are rationally related to any legitimate end of government. State v. Williams (2000), 88 Ohio St. 3d 513, 530 (“This rational basis analysis is discarded for a higher level of scrutiny only where the challenged statute involves a suspect class or a fundamental constitutional right.”) (citing Clements v. Fashing (1982), 457 U.S. 957, 963). Rational basis review requires the court to ask only if the state had a legitimate purpose, and if some conceivable relationship to the classification supports that purpose. Clements, 457 U.S. at 963 (“Classifications are set aside only if they are based solely on reasons totally unrelated to the pursuit of the State's goals and only if no grounds can be conceived to justify them.”)

The Sixth District found that the laws served the legitimate government purpose of “protecting property and people from vicious dogs.” Tellings, 2006-Ohio-975 at ¶ 56. This is surely an important and fundamental purpose, but it may not have been the only purpose of the laws. The Sixth District could certainly have drawn the boundaries of the State's purpose more broadly. A challenged statute must be upheld “if there is any reasonably conceivable state of facts that could provide a rational basis” for the distinction at issue. Heller v. Doe (1993), 509 U.S. 312, 320. For instance, in light of the “opinion [of pit bulls] generated by newspaper sensationalism and hearsay,” the lawmakers may have rationally considered that it would serve the government purpose of neighborhood harmony and peace to highly regulate pit bull ownership. Tellings, 2006-Ohio-975 at ¶ 62. Another legitimate state goal is preventing the misuse of these animals by those dog owners who would use them in dog fighting or in the *20 furtherance of crime. Tellings, 2006-Ohio-975 at ¶ 66. Any of these purposes could have been supported by the facts adduced at trial.

In fact, it may be more apt to say that the purpose of these laws is to “protect persons and property from irresponsible or malicious owners of vicious dogs.” Like regulation of explosives, the State has a legitimate purpose of protecting citizens not only from the mere existence of dangerous items, but also from their misuse and deleterious effects on the community. Central to the Sixth District's analysis was this view: “Once the finding is made that a specific breed does not inherently represent a greater danger than any other breed, a law that regulates that breed on the basis of mere ownership is arbitrary, unreasonable, and discriminatory.” Tellings, 2006-Ohio-975 at ¶ 66. The court below reasoned that since pit bulls are no more aggressive than other breeds, the laws at issue had no rational basis and therefore must be stricken down. Tellings, 2006-Ohio-975 at ¶ 66-67. However, in light of the multitude of purposes that such laws may serve, the Sixth District's focus is overly narrow. If bad actors are more likely to own and misuse pit bulls, it is rational for lawmakers to pass laws that focus on pit bulls.

Moreover, the question is not, as the Sixth District put it, whether pit bulls are inherently more vicious than any other breed. That question is for to the legislature to decide. The question before the courts below is merely whether the facts supporting the legislative assumptions are subject to reasonable dispute. United States v. Carolene Products Co. (1938), 304 U.S. 144, 154. This determination is accompanied by inquiry into whether those facts then rationally support a legitimate state purpose. As noted by the United States Supreme Court:

the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, ... the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, ... and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational...

*21 New York City Friends of Ferrets v. City of New York (1995), 876 F. Supp. 529, 533 (citing Nordlinger v. Hahn (1992), 505 U.S. 1). The same standard applies in the context of due process rational review. Sam & All, Inc. v. Ohio Dep't of Liquor Control (6th Cir. 1998), 158 F.3d 397, 403 (“As in the analogous substantive due process analysis articulated above, an enactment subject to ‘rational relationship’ equal protection review must be sustained if any conceivable basis rationally supports it.”). That is, the Sixth District should not have weighed the facts that support the laws at issue. Instead, the court should have inquired whether the facts in support of the laws could conceivably have been considered true by the legislatures. If the character of pit bulls, or their propensity for viciousness, or their use or misuse by human bad actors, or their impact on the safety and harmony of the neighborhood, or any other fact supporting vicious-dog laws can be said to be reasonably disputed, then the inquiry should have stopped there. The court should then have turned to a consideration of whether those facts are rationally related to the purposes of the laws.

The trial court in this case had a wide variety of evidence in front of it that could provide a “reasonably conceivable set of facts,” under which either court below could have found that the lawmakers had rational reasons to treat pit bull owners differently in the law. As noted by the Sixth District: “the trial court was called upon to sort through a virtual encyclopedia of information, testimony and evidence, to discern truth from fiction, and to consider opinions and conclusions drawn by respected experts by both parties.” The City of Toledo submitted to the trial court the testimony of four expert witnesses, lengthy pleadings with scholarly articles and book sections attached, and various decisions of other courts regarding the dangers posed by the pit bull breed.

*22 Thus, a host of information showed that the facts underlying the legislative determination are, at most, in dispute, and that the lawmakers were could have reasonably relied upon them. Minnesota v. Clover Leaf Creamery Co. (1981), 449 U.S. 456, 464. Once such a finding is made, the laws must be upheld if they rationally effectuate a legitimate policy purpose. Nordlinger, 505 U.S. at 11. This is true “even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” Romer v. Evans (1996), 517 U.S. 620, 632. “If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Mathews v. De Castro (1976), 429 U.S. 181, 185 (citing Dandridge v. Williams (1970), 397 U.S. 471, 485).

B. The court below, in finding that no rational basis supported the laws in question, improperly overruled the Ohio General Assembly's legislative judgment.

The Sixth District went too far in reweighing the facts underlying legislative policy judgments regarding the dangers of pit bulls. The court below stated that: “As scientific information advances and becomes available, courts have a duty to reconsider issues and make decisions which are supported by the actual evidence presented, instead of relying on ‘common knowledge’ and opinion generated by newspaper sensationalism and hearsay, rather than accurate, scientific evidence.” Tellings, 2006-Ohio-975 at ¶ 62. This stands in stark contrast to the understanding of the United States Supreme Court that “equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” FCC v. Beach Communications (1993), 508 U.S. 307, 313, cited with approval by this Court in State v. Thompson (2002), 95 Ohio St. 3d 264, 2002-Ohio-2124 at ¶ 56. “In other words, a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Id. at 315.

*23 The court below cited two inapposite instances in which law was changed on the basis of new scientific evidence to support overturning the laws at issue. Tellings, 2006-Ohio-975 at ¶ 62-63. First, it cited to changes in the admissibility of expert testimony of Battered Woman Syndrome. Tellings, 2006-Ohio-975 at ¶ 62. This is inapplicable to the facts at hand, because the Court in Koss defined the acceptability of evidence with regard to changes in scientific evidence as it related to rules promulgated by the Court, not legislative enactments. Moreover, the Court even noted in Koss that, at the time of the opinion, the General Assembly was considering a bill that would have codified the admissibility of expert testimony relating to BWS. State v. Koss (1990), 49 Ohio St. 3d 213, 217, n.2. Next, the Sixth District relied on “the 2003 Ohio legislative enactment which allows previously convicted persons to submit DNA testing of old evidence in postconviction proceedings.” Tellings, 2006-Ohio-975 at ¶ 62. Again, this is far from precedential authority for the proposition that courts may overrule legislative enactments under rational basis review “light of new technological, scientific, or social discoveries.” Rather, as noted by the United States Supreme Court: “The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Vance v. Bradley (1979), 440 U.S. 93, 97.

Instead of reviewing the laws by looking for a rational set of circumstances which would support the laws, the court below took it upon itself to weigh the evidence in support of the law, and thereby usurped the legislative power of the General Assembly and the Toledo City Counsel. The concern here is in separation of powers. As the United States Supreme Court has said: “where individuals in the group affected by a law have distinguishing characteristics relevant to interests the [government] has the authority to implement, the courts have been very reluctant, as *24 they should be ... with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” City of Cleburne v. Cleburne Living Center (1986), 473 U.S. 432, 441-442.

Amicus Curiae Attorney General's Proposition of Law No. 3:

A statute that defines a dog by using the name of the breed is not impermissibly vague.

In Tellings's fourth assignment of error before the Sixth District, he argued that: the “statutes violate the defendant's rights to due process because there is no rational basis to positively identify a pit bull.” Tellings, 2006-Ohio-975 at ¶ 71. The Sixth District translated this assignment into a “void for vagueness” challenge to the statute. Despite noting that this assignment is “technically moot” and that this Court has already foreclosed this challenge to laws that classify based on the breed “pit bull,” the court below found that the laws were unconstitutionally vague. But this Court has already ruled on this issue, and moreover, the laws at issue are clear enough to advise the public and law enforcement on what conduct is prohibited.

A. A person of reasonable intelligence can determine whether the animal that she owns belongs to the breed “pit bull,” and describing a dog by naming the breed to which it belongs will not impermissibly broaden law-enforcement discretion nor will it lead to arbitrary and discriminatory enforcement.

Although the Sixth District reached the wrong result, it did cite several cases that state that pit bulls are readily identifiable. Tellings, 2006-Ohio-975 at ¶ 63. We bring some of them to the Court's attention again:

In Anderson, this Court most found that potential dog owners would be able to determine whether they own a “pit bull” by the dog's appearance and behavior, by the potential owners' acquired knowledge, and by the common knowledge possessed by veterinarians and breeders. 57 Ohio St. 3d at 173.

*25 In Robinson, the Twelfth District found that although the definition “pit bull” was not formulaic, no precise formula was required, as such dogs may be identified by their common physical characteristics. Robinson, 44 Ohio App. 3d at 132. The Twelfth District found that the breed could be identified by ready resort to a dictionary: “a short-haired terrier of a breed originating in England by crossing the bulldog with terriers to develop a dog of speed, hardihood, and powerful bite for use in dog fights, dogs of this breed having great courage and strength but being built on the trim lines of a terrier.” Id. (citing Webster's Third New International Dictionary (1981) 295).

In American Dog Owners Association, Inc. v. Dade County, the District Court in Florida found evidence that “most people know what breed their dogs are.” (S.D. Fla. 1989), 728 F. Supp. 1533, 1539-40. That court went on to note that the breed is capable of definition, as done by various magazines and veterinarians. Id. See also Hearn v. Overland Park (1989), 244 Kan. 638, 772 P.2d 758; Singer, 57 Ohio App.3d at 1; State v. Peters (Fla. App. 1988), 534 So.2d 760.

Of particular note are Anderson and its companion case, State v. Ferguson. Anderson, 57 Ohio St. 3d at 168; State v. Ferguson (1991), 57 Ohio St. 3d 176. In these cases, this Court announced that Ohio's pit bull classification is not unconstitutionally void for vagueness because of the use of the term “pit bull.” Ferguson, 57 Ohio St. 3d at 177. Specifically, this Court said 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.” Id. Thus, any argument that these statutes should fail as vague for failure to sufficiently define “pit bull,” is long foreclosed.

*26 Further, neither the Ohio nor Federal Constitutions require absolute precision in statutory drafting. Miller v. California (1973), 413 U.S. 15, 28, 37. As this Court has said, the vagueness doctrine is based on a “rough idea of fairness,” and a law is not “void for vagueness merely because it could have been more precisely worded ... The legislature need not define every word of a statute. Words of ordinary usage will be given the meaning commonly attributed to them.” State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals (1992), 63 Ohio St. 3d 354, 358 (internal citations omitted). The words used in this case (“pit bull”) are sufficiently words of normal usage that this Court should find that fairness is satisfied and the laws are not unconstitutionally vague. Anderson, 57 Ohio St. 3d at 173.

Moreover, as the laws at issue do not infringe on specific constitutional guarantees, the laws are not unconstitutionally vague unless they are “ ‘vague in all of [their] applications ... Occasional doubt or confusion about the applicability of a statute does not render the statute vague on its face.’ ” Anderson, 57 Ohio St. 3d at 173 n.2 (internal citations omitted) (citing Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 494-496). Tellings cannot show that the statute is unconstitutionally vague in every application.

B. The law imposes a duty on each dog owner to ascertain whether her dog is a “pit bull,” just as similar duties are routinely imposed in other strict liability statutes.

It is irrelevant to a constitutional inquiry that the law may punish people who are unaware that the animals that they possess are pit bulls, because the law imposes a duty upon the owners to ascertain the breed of their dogs. Laws often prohibit conduct without regard to whether or not the lawbreaker is aware that he is in violation of an element of the offense. For instance, in State v. Kominis, the defendant broke the law by aiding, abetting and inducing the delinquency of a minor-a strict liability offense---despite the fact that “while only fifteen years of age, [the minor] was 6 feet 2 inches tall, weighed 170 pounds, and appeared older than his actual age.” *27 State v. Kominis (9th Dist. 1943), 73 Ohio App. 204, 205. Similarly, in State v. Morello, the defendant was convicted of selling alcohol to an intoxicated person, without any evidence that the seller knew that the person was intoxicated. State v. Morello (1959), 169 Ohio St. 213, 216. The Morello Court found that the alcohol seller had a duty to determine whether he was in compliance with the law, and mere lack of knowledge was not a defense. “The common good, in each instance, imposes a duty upon the seller to ascertain the status or condition of the person to whom the sale is made, and if he persists in the sale he does so at his peril.” Morello, 169 Ohio St. at 216.

The same can be said about laws limiting the ownership of pit bulls. The pit bull breed is capable of ready identification, and the laws impose a duty on each person, for reasons of public welfare, to determine whether she owns this dangerous animal. Whether the owner actually knows the breed of his dog is irrelevant, as what matters is whether he is able to ascertain what the law prohibits, that he may conduct himself accordingly.

*28 CONCLUSION

For the above reasons, the Court should reverse the decision below.

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

2006 WL 3385308 (Ohio)