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Memo to Casey Jarman 01/03/07 Page 3 I could provide more examples, but, as the Alaska Supreme Court put it, "[a] statute or ordinance is not so vague as to deny due process merely because it occasionally requires the trier of fact [i.e., a judge or jury] to determine the question of reasonableness." 3 Another reason why I believe that this bill is not unconstitutionally vague is that the purpose of requiring due process is to protect important liberty interests. In regards to noise ordinances, heightened scrutiny is usually only applied when an ordinance may affect freedom of expression: "Vagueness is concededly a relative concept. When the First Amendment is not implicated, a notably less stringent degree of specificity is commonly accepted." State v. Manzo, 58 Haw. 440 (1977). There is no recognized constitutional right to dog ownership. Because no fundamental right to dog ownership exists, a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may conceivable be applied unconstitutionally to others.4 If five neighbors testify that a dog was bazking loudly all night and they couldn't sleep, the defendant would not be able to challenge the law by using hypothetical situations. I also doubt that a constitutional challenge would be successful because legislative enactments are presumptively constitutional. In the context of analyzing whether an ordinance was unconstitutionally vague, the Hawaii Supreme Court stated: "a party challenging an ordinance has the burden of showing unconstitutionality beyond a reasonable doubt. This infraction should be plain, cleat, manifest, and unmistakable." I don't think that is the case here. It is my belief that citizens who desire to obey the law will have no difficulty in understanding it. Another reason why I doubt that a court would find Bi11258 Draft 6 unconstitutionally vague is that similar laws have been upheld by courts in other jurisdictions. For example, in City of Madison v. Baumann, 162 Wis.2d 660 (1991), an ordinance prohibiting "making any noise tending to unreasonably disturb the peace and quiet of persons in the vicinity thereof' was not void for vagueness in view of its use of the reasonable person standard. "The reasonable person standard is one that has been relied upon in all branches of the law for generations... [t]he word, "unreasonably," is the linchpin that prevents excessive discretion in the police and which gives guide to persons in respect to their conduct." ' State v. Marathon Oil Co., 528 P.2d 293 (1974). ° See State v. Sturch, 82 Haw. 269 (1996). Serving the /nterests of the People of Our Island Hawaii County is an Equal Opportunity Provider and Employer