Buchda v. Vill. of Fall River

MADELYN WISSELL BUCHDA, Plaintiff, v. VILLAGE OF FALL RIVER, Defendant.

15-cv-120-wmc

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

May 23, 2016

OPINION AND ORDER

Plaintiff Madelyn Wissell Buchda challenges defendant Village of Fall River's ordinance prohibiting pit bulls in the village. Buchda contends that the ordinance violates both her due process and equal protection rights under the Fourteenth Amendment of the United States Constitution. The parties have cross-moved for summary judgment. (Dkt. ##17, 31.) For the reasons that follow, the court concludes that plaintiff's due process and equal protection claims fail as a matter of law. Therefore, the court will deny plaintiff's motion for summary judgment, grant defendant's motion, and direct the clerk of court to enter final judgment in defendant's favor.

PRELIMINARY MATTER

In moving for summary judgment, plaintiff failed to propose findings of fact. Apparently, plaintiff did not recognize this omission until filing her reply, at which time she filed a motion for extension of time to file proposed findings of facts, along with her proposed submission. (Dkt. #39.) At that point, however, plaintiff's motion was fully briefed, and granting the motion to file proposed findings effectively would put the motion back to square one.

Moreover, plaintiff's justification for missing the deadline makes no sense. Plaintiff's counsel represents that he mistakenly believed the parties had agreed to stipulated facts, but plaintiff failed to file any stipulated facts with the motion as well. Instead, plaintiff simply recites several pages of "facts" without any reference to a stipulation or the underlying evidence, except for a couple of references to a police report, which (as far as the court can tell) is not part of the record.

To make matters even worse, plaintiff failed to respond to defendant's proposed findings of fact submitted in support of defendant's counter-motion. Plaintiff's failure to follow this aspect of the court's summary judgment procedures (see 5/28/15 Order (dkt. #10) 11-15) is frankly inexcusable, especially when represented by counsel. Nonetheless, to avoid any prejudice to plaintiff, the court has reviewed her proposed findings of facts, including the supporting references to her deposition testimony, and included those where material. Unless otherwise noted, the court finds the following facts undisputed and material.

UNDISPUTED FACTS

A. The Village's Pit Pull Ordinance

The Village of Fall River is a Wisconsin municipality governed by a Board of Trustees. In October 2007, the Village Board amended ordinance section 7-1-9 ("the Ordinance") to prohibit possession of pit bull dogs within the Village limits. The relevant portion of the Ordinance provides as follows:

a) Keeping of Animals Prohibited. It shall be unlawful to keep, harbor, own or in any way possess within the corporate limits of the Village of Fall River:

. . .

(3) Any Pit Bull. Any Pit Bull presently registered with the Village on the day this section becomes effective may be kept within the Village subject to the standards and requirements set forth in Subsection (b) of this Section. "Pit Bull dog" as that term is used in this Section is defined to mean:

a. The Staffordshire bull terrier breed of dog;

b. The American pit bull terrier breed of dog;

c. The American Staffordshire terrier breed of dog;

d. Any dog which has the appearance or characteristics of being predominantly the above breeds, or any combination of any of those breeds. In the event an owner disputes the breed of the dog, the Village Chief of Police may at the cost of the owner, have the dog examined by a Veterinarian chosen by the Chief of Police to determine the breed or the predominant appearance or characteristic of dog.

(Green Aff., Ex. 2 (dkt. #20-2).)

The Ordinance further provides that it was enacted for the purpose of "providing for the health[,] safety and welfare of the citizens of the Village of Fall River.' (Id.) Defendant also submits extensive proposed facts about: (1) the Chief of Police Brent Van Gysel's awareness of pit bull complaints dating back to 2003 through the time of the enactment; (2) his having relayed those complaints to the Trustees; and (3) the Trustees' own averments that they voted for the Ordinance because of concerns about pit bull attacks and difficulty enforcing the previous ordinance. (Def.'s PFOFs (dkt. #19) ¶¶ 3-11, 15-16, 20-24.)

B. Plaintiff's Dogs

Plaintiff Madelyn Buchda obtained three dogs in the spring of 2011: Emmett roughly in April from the Dodge County Humane Center, Thor in May, and another dog named Diesel in June, the latter two were from unknown individuals. In April 2011, Buchda and her husband, Mark Buchda, attended a Board of Trustees meeting for the Village, during which she requested permission to have Emmett in the Village, since she was concerned that the "dog appears to look like a pit bull," and therefore may violate the Ordinance. (Madelyn Buchda Depo. (dkt. #16) 17.)

C. The Citations

In December 2013, Officer Zack Fredrickson observed a vehicle parked in Buchda's driveway that he believed violated the Village's junk vehicle ordinance. While investigating the vehicle, Officer Fredrickson observed a dog that looked like a pit bull inside plaintiff's home.¹ According to Officer Fredrickson, Mark Buchda admitted that the dog was not registered with the Village. Fredrickson then directed him to do so.

The next day, Buchda herself registered Thor and Diesel. In registering the dogs, Buchda changed the breed on their respective rabies certificates from "American Staffordshire Terrier" to "Boxer Bulldog Mix" for Thor, and from "Pitbull" to "Boxador" for Diesel. In her deposition, plaintiff admitted both that she made these changes andthat she previously admitted to Officer Fredrickson that she had forged the papers. (Def.'s PFOFs (dkt. #19) ¶ 45 (citing Madelyn Buchda Depo. (dkt. #16) 23-24)).)

On December 13, 2013, the Village issued plaintiff two citations for violating the Ordinance. (Fredrickson Aff., Ex. 5 (dkt. #21-2).) The citations themselves concerned only Thor and Diesel, both of whom were obtained by the plaintiff in the two months after she and her husband attended a Board of Trustees meeting to express concerns about being allowed to keep her first pit bull, Emmett, in the Village. Plaintiff's husband Mark acknowledged at his deposition in this case that both Thor and Diesel are pit bulls, though plaintiff herself testified that they are "mixed-breed," although she did not have breeding papers for either dog. Buchda nevertheless moved the dogs out of the Village after being issued these citations and she entered into a deferred prosecution agreement with the Village, pleading no contest to the charges of violating the Ordinance.

D. Defendant's Expert Testimony

In support of its motion for summary judgment, the Village also proffered expert testimony from Ron Berman, a canine behavior consultant, evaluator and trainer. He opines that there are a number of "objective standards and measures for a factfinder to use to decide whether a dog is a 'pit bull dog' under the Ordinance." (Def.'s PFOFs (dkt. #19) ¶ 63 (citing Berman Aff. (dkt. #23) ¶ 7).) Berman further represents that "[d]og breeds are typically characterized by certain physical and behavioral traits according to standards set by national breeding organizations." (Id. at ¶ 64 (citing Berman Aff. (dkt. #23) ¶¶ 8-12).)

Specifically, Berman cites to standards issues by the American Kennel Club, which identify physical and behavioral traits of the American Staffordshire Terrier, Staffordshire Bull Terrier and American Pit Bull Terrier breeds. (Id. at ¶¶ 65-69 (citing Berman Aff. (dkt. #23) ¶¶ 8-11).) In addition, an owner can use breeding or pedigree papers of a commercially available DNA-based breed identification test to demonstrate the breed of a dog.

Berman last opines that "'[p]it bull dogs' have unique behavioral traits that create a higher likelihood that an attack will cause more serious injuries or death, namely gameness, strength and manner of attack." (Def.'s PFOFs (dkt. #19) ¶¶ 72-73 (citing Berman Aff. (dkt. #23) ¶¶ 5.) Berman refers in particular to "[p]ublished studies of reported fatal and serious dog attacks in the United States [that] show . . . 'pit bull' dogs seriously harm or kill people more frequently than almost any other breed of dog." (Id. at 6.)

OPINION

Plaintiff's complaint presents a hodgepodge of eight claims invoking her rights under the United States Constitution, primarily those found in the Fifth and Fourteenth Amendments. Consistent with the parties' briefing, the court organizes Buchda's complaint into the following categories: (1) due process claims based on an alleged lackof hearing and impermissible shifting of burden; (2) a void for vagueness challenge; and (3) an equal protection class of one claim.² The court addresses each category below.

I. Due Process Challenges

A. Opportunity to Be Heard and Placement of Burden

The two-step analysis for a procedural due process claim requires that the court consider: (1) "whether the plaintiff was deprived of a constitutionally protected interest in life, liberty or property"; and (2) if so, "what process [s]he was due with respect to that deprivation." Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996). Defendant concedes that plaintiff has a liberty interest in not being subject to a civil forfeiture for violating a municipal ordinance. As such, the claim turns on whether the Ordinance provides an adequate mechanism to challenge that deprivation.

"The presumption is that an individual is entitled to notice and an opportunity for a hearing prior to the state's permanent deprivation of his property interest." Porter, 93 F.3d at 305 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982); Goss v. Lopez, 419 U.S. 565, 579 (1975). "What process is required in a particular context or a given set of...