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HomeMy WebLinkAboutCOM 0017.005 2006-2008 CASEY JARMAN .<1."'..w,y County Clerk Mailing Address: : Business Address: (Former County Building •?'~,o~,N',~r~ 333 KFlauea Avenue, Second Floor 25 Aupuni Street Ben Franklin Building Hilo, Hawaii 96720 Hila, Hawaii 96720 County of Hawai `i Office of the County Clerk Legislative Research Branch Telephone: (808) 961-8255 Facsimile: (808) 96l-8912 January 3, 2007 0 The Honorable Pete Hoffmann d7 ~ Council Chair - :z County of Hawaii Hilo, Hawaii 96720 'r R.E: Veto of Bi11258, Draft 6 ~ ~ ; Relating to Animals ~ ~ ' We submit for the council's consideration information relating to the points raised in~he Mayor's veto message regarding bill 258, draft 6. We cite the Mayor's three reasons for veto followed by our comments. The three stated reasons for veto were as follows: 1. "Bill 258 Draft 6 is being vetoed because the agencies that would be responsible for enforcing the provisions of this law have indicated that as written, sections are unenforceable and may be constitutionally vague, particularly in relation to the definition of animal nuisance." Comments: We assume that the language in the bill of greatest concern to the Mayor relates to the prohibition against unreasonable noise, contained in sec. 4-5. The bill prohibits "`unreasonable noise' continuously and/or incessantly for a period of twenty minutes." Unreasonable noise is defined in sec. 4-] of the bill as: Noise, including barking, whining, howling, crowing, or crying, that considering the nature and the circumstances surrounding the noise, including the nature of the location and the time of the day or night, unreasonably interferes with reasonable individual or group activities such as, but not limited to, communication, work, rest, recreation, or sleep. " Comm. No. ~ 7. Serving the /nterests ojthe People of Our Island Ref. 70: Pr4dlyfrt Hawaii County is an Equal Opportunity Provider and Employer Ref. Uate JAN 0 20(]] Mr. Hoffmann January 3, 2007 Page Two This prohibition, which is based on language from sec. 7-2.4 of the Revised Ordinances of Honolulu, was inserted into the bill in response to public testimony that asked the council to amend the bill to allow the consideration of the circumstances surrounding the incidence of excessive animal noise. Precedent for the use of a reasonableness standard relating to noise enforcement can be found in sec. 342F, Hawaii Revised Statutes, which defines "excessive noise," in part, as sound, "which unreasonably interferes with the comfortable enjoyment of life and property...." Consequently, while this standard may be difficult to enforce, as are most noise complaints, it is not clear that this provision is unenforceable. Further, after considerable research, it is our conclusion that it is highly unlikely that this bill would be struck down as unconstitutionally vague. Reasonableness is a standard often used and upheld as not being unconstitutionally vague. (See attached legal memo to Casey Jarman.) 2. "In addition, the bill mandates that all police officers, from the Chief on down to patrol officers, have the responsibility of seizing any unlicensed dog found running at large, then selling or killing said animal. The Police Department is strapped for personnel, and making this a mandatory function will take away from more critical enforcement activities and exacerbate the current shortage of officers." Comment: We believe that this comment refers to sec. 4-16 of the bill, relating to the seizure of dogs by "officers." This section of the bill is identical to sec. 4-20 of the current Hawaii County Code. Sec. 4-20 of the current Code was first enacted and amended in 1980, and then amended again in 1995. Consequently, this language has now been in effect for at least ten years. In the current code and the bill, the term "officer" refers to "animal control officer." This term is defined as any employee or trained volunteer of the county's animal control contractor or the Hawaii County police department. Serving the Interests of the People of Our [s/and Hawai `i County is an Egua( Opportunity Provider and Employer Mr. Hoffmann January 3, 2007 Page Three 3. "The bill also does not address the issue of the amount of fines for violations, which was one of the issues that parties working on animal control were trying to address." Comment: This bill provides for fines for violations of the animal code. These include fines of up to $2,000 and imprisonment for violations of the dangerous dog provisions (sec. 4-27) as well as penalties of $500 for each violation of the cruelty to animal provision (sec. 4-40). In addition, the bill standardizes the penalties for animal nuisances (sec. 4-11), regulation of dogs (sec. 4-25), and cat identification (4-39). The schedule of graduated penalties for violations of these provisions includes the following fines: - $25 for a first offense; - $50 for a second offense within the preceding two years; and - $100 to $1,000 for repeat offenders who have had two or more prior offenses within the preceding two years. It appears that the concerns raised in the veto message aze based more upon disagreement with policy choices expressed in the bill than from actual fatal constitutional or legal flaws. Thank you for this opportunity to comment. Sincerely, ~~Sl.c cJ C~Lc1 Leslie Chow Legislative Specialist ~tl~' Kenneth Goodenow Legal Specialist Encl. Serving the /nterests of the People of Our /s[and Hawaii County is an Equa! Opportunity Provider and Employer CASEYJARMAN ~1•~+^_• V,••-~ ~ ~4 County Clerk i~ Mai[ingAddress: Business Address: (Former County Bui[din~ •~r•~,o.,N',+i~ 333 Kilauea Avenue, Second Floor 25 Aupuni Street Ben Franklin Building Hilo, Hawaii 96720 Hilo, Hawaii 96720 County of Hawai `i Office of the County Clerk Legislative Research Branch Telephone: (808) 961-8255 Facsimile: (808) 961-8912 January 3, 2007 MEMORANDUM To: Casey Jarman County Clerk From: Kenneth Goodenow~~ Legal Specialist Re: Constitutionality ofAnimal Control Bill (Bi11258 Draft 6) As discussed previously, it is my opinion that Bi11258 Draft 6 is unlikely to be found unconstitutionally vague. The purpose of this memorandum is to provide a brief overview of my reseazch on this subject. In determining whether a law is vague, the Hawaii Supreme Court has stated that due process of law requires that a statute or ordinance do two things: First, the law must state with reasonable clazity the act that it proscribes, or in other words, an ordinance must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited. The second requirement is that the ordinance must provide fixed standards for adjudging guilt.t Every ordinance is a delegation oflaw-implementation power to the executive branch (in this case to prosecutors and police) and to the judiciazy; due process requires courts to call for more specific directions from the legislature when important liberties aze involved. If these conditions aze not met, the ordinance is void for z vagueness. ~ These two requirements are "essentially indistinguishable" from the applicable standard under federal law: "Thus, we have so far not departed from federal constitutional law in the area of "void for vagueness" challenges to criminal statutes." State v. Lindstedt, 101 Haw. 153 (2003). z See State v. Guzman, 89 Haw. 27 (1998); State v. Kalama, 94 Haw. 60 (2000); State v. Kamal, 88 Haw. 292 (1998); State v. Trion, 71 Haw. 479 (1990). Serving the Interests of the People of Our Island Hawaii County is an Equal Opportunity Provider and Employer Memo to Casey Jarman 01/03/07 Page 2 It is my opinion, however, that if Bi11258 Draft 6 were challenged in court as unconstitutionally vague, the County would have a very defendable position. In fact I would go so faz to say that I believe it is highly unlikely that this ordinance would be struck down as vague for several reasons. First, and most importantly, the use of the words "reasonable" and the absence of an express definition of the word "reasonable" in this particulaz ordinance is not constitutionally fatal because the term has a definite, widely-understood meaning, a settled usage and a tradition of interpretation in law. In State v. Guzman, 89 Haw. 27 (1998), the Intermediate Court of Appeals upheld ananti-picketing statute stating that the term "unreasonably interfere with" required no guessing at its meaning as these were words of common understanding. In State v. Kanela, 82 Haw. 381 (1996), the Intermediate Court of Appeals rejected a vagueness challenge to an Abuse of a Family/Household Member law that stated a police officer could take a course of action, "where the officer has reasonable grounds to believe that there was recent physical abuse." Defendant challenged the use of the term "reasonable grounds," arguing that the statute vested "virtually unbridled discretion upon responding police officers and trial court judges in enforcing the statute." The Court stated "the reasonable grounds" standazd is an objective standard requiring a trial court to independently assess the facts and circumstances presented to responding officers. The use of the term "unreasonable" is used throughout the Hawaii Revised Statutes. The following statutes provide a few examples: Section 342-F -Noise Pollution: "Excessive noise" means the presence of sound as measured by standard testing devises as established by rule...of a volume or in quantities and for durations which endangers human health, welfare or safety, animal life, or property or which unreasonably interferes with the comfortable enjoyment of life and property... Section 378 -71: "Stalking" means engaging in a course of conduct directed at a specifically targeted person that would cause a reasonable person to suffer substantial emotional distress or to fear bodily injury, etc.. Section 134: No person shall store a keep any firearm if the person knows or reasonably should know that a minor is likely to gain access to the firearm...unless the person: Keeps the firearm in a securely locked box or other container or in a location that a reasonable person would believe to be secure... Serving the Interests of the People afOur Island Nawai'i County is an Equal Opportunity Provider and Employer 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 Memo to Casey Jannan 01/03/07 Page 4 In State v. Holcombe, 187 S.W.3d 496 (2006), the Texas Criminal Court of Appeals held that a city noise ordinance which prohibited the playing of music "in such a manner as to unreasonably disturb neighboring persons of ordinazy sensibilities" adequately described the prohibited conduct and did not permit arbitrary or discriminatory enforcement and was thus not unconstitutionally vague. In Commonwealth v. Ferreri, 30 Mass.App.Ct. 966(1991), a Massachusetts's appellate court held that term "excessive barking" in a dog control statute was not unconstitutionally vague. That court concluded: "A statute is not vague in the...constitutional sense if it requires a person to conform his conduct to an imprecise but comprehensible normative standard." In State v. Smith, 46 N.J. 510, cert. denied, 385 U.S. 838 (1966), the Supreme Court of New Jersey sustained a statute which provided that "[a]ny person who by noisy or disorderly conduct disturbs or interferes with the quiet or good order of any place of assembly is a disorderly person." The New Jersey Supreme Court stated: Defendant says the statute is void for vagueness because it does not spell out the degree of noise or the details of a disorder which will offend. Of course, the statute does not do so in specific terms, and it may be doubted that the ingenuity of man could meet that demand if the Constitution made it. But the Constitution does not insist upon the impossible. It asks only what the subject will reasonably permit, and hence if there is a public interest in need of protection, due process does not stand in the way merely because the subject defies minute prescription. I hope that this brief summary of my research on this issue has been helpful. Please do not hesitate to contact me if you have further questions or require additional information. Serving the Interests ojthe People ojOur Island Hawaii County is an Equal Opportunity Provider and Employer