Dogged challenge

Feb 5, 2008 at 9:53 pm

A year ago, foes of the new dangerous dog ordinance filed suit on
constitutional grounds. The case may be decided soon

In late 2005, after dogs had recently killed two people in Louisville, the call to action was predictably amplified. The Metro already had a law that specifically described what constitutes a dangerous dog — “any dog, which when approached, in an aggressive manner commits a severe attack on any person” — but in the heat of the moment, some interested parties found existing measures inadequate. They wanted a better way of rooting out potential knucklehead dog owners and preventing such horrific incidents.

There’s a funny thing about laws, though. The Constitution tends to frown on open-ended measures that grant arbitrary power based on unspecified guidelines. That is, it is not cool when a person in charge is authorized to make decisions on a “because I said so” basis.
To some interested observers, that is precisely where things currently stand in Louisville, after a long and arduous Metro Council process that culminated with the passage of a sprawling new dog ordinance in late 2006, with subsequent revisions approved late last year.

Several groups, including the Louisville Kennel Club, filed suit in March 2007, alleging among many things that the law is too vague and that it allows for illegal searches and seizures. Little transpired with the suit, which was moved from state to federal court, as a council subcommittee worked on revisions throughout 2007.

After new changes were approved by the full council, the plaintiffs kept the suit alive and filed a motion for summary judgment last month. That motion asks Federal Circuit Judge Charles Simpson to rule in favor of the plaintiffs, asserting that major parts of the ordinance are unconstitutional and that the entire ordinance is, therefore, fatally flawed.
The County Attorney’s office was to respond by Monday, but it has been granted an extension until Feb. 20.

The new ordinance originally shaped up as a “pit bull” law, with the council seeming to pursue a breed ban. As the council prepared to vote on the ordinance at its Dec. 19, 2006 meeting, it was revised at the 11th hour: Instead of stipulating specified breeds that would be subject to new oversight, the draft substituted all unaltered dogs in place of those specific breeds.
The council recently voted to remove that stipulation, but it left in place provisions that allow the director of Metro Animal Services to inspect the enclosures of dogs he or she deems dangerous or potentially dangerous. That is a central focus of the legal challenge, as is the lack of specific guidelines for what constitutes dangerous or potentially dangerous.

The plaintiffs’ suit suggests that the council engaged in a badly flawed legislative process that resulted in a convoluted and legally indefensible document. The filing notes that on some occasions, council members observed that the document, then in draft form, was disjointed and hard to understand. At one point, because the ordinance was being completely rewritten by MAS Director Gilles Meloche, the draft was sent to the county attorney’s office for review, and the office noted that it “suffered from significant legal deficiencies, some of which stemmed from poor draftsmanship.” The county attorney also recommended that the ordinance be made less complex by placing details under administrative regulations — that is, the suit alleges, that the council should “give Dr. Meloche wide discretion to interpret and enforce the ordinance as he liked.”

Bill O’Brien, director of the civil division of the County Attorney’s office, said they’re perplexed. “Part of the problem we’re having is discerning what the constitutional issue is,” O’Brien said. “There’s a lot of discussion in there about (Meloche). … Basically, their argument is that the ordinance isn’t fair, and Dr. Meloche is French Canadian.”

O’Brien was referring to Meloche’s past; in his native Canada, he pleaded guilty to an administrative charge of improper record keeping and failure to write a proper prescription for animal steroids — essentially, he mishandled drugs. Meloche later worked in Durham, N.C., and Tallahassee, Fla., leaving both jobs amid controversy. While the council here was working on its new ordinance, Meloche’s attorney sent cease-and-desist letters to people who were publicly discussing Meloche’s employment history.

As for the suit, O’Brien said he thinks the ordinance does provide due process, because citizens can appeal MAS actions to a higher level — the director of public safety, part of the Mayor’s office. O’Brien also believes ordinance provisions regarding search and seizure are within reasonable limits.

Jon Fleischaker, the lead attorney representing the plaintiffs, said he expects the judge to rule on the case without a trial. Bill Patteson, spokesman for the County Attorney’s office, said his office is preparing for trial.

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