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Minnesota dog limit battle highlights
difficulties in fighting city hall

One judge says a limit is "an invalid exercise of police power violating the plaintiffs' Constitutional right to due process." Another says “restricting the number of dogs per residence ... is a reasonable means” of achieving a legitimate government goal.

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In 1995, the city of Sauk Rapids, Minnesota, passed a two dog limit laws for residential properties in the city. The law was challenged by two dog owners, and a lower court judge upheld the challenge, noting that the law was “an invalid exercise of police power violating the plaintiffs' constitutional right to due process.”

“The court finds that ownership of dogs and other pets is a property right which is protected by the Constitution,” said District Court Judge Thomas P. Knapp when he granted the judgment.

Although this news delighted dog owners throughout the country, that joy was short-lived. The city appealed, and in February 1997, the appeals court reversed the lower court decision, affirming the city’s right to limit dogs by number in an effort to reduce complaints about dog-related noise and odor. The successful appeal can be found at http://www.lawlibrary.state.mn.us/archive/ctappub/9702/c5961935.htm.

The battle

The city passed the laws in an attempt to stem the number of complaints about dogs. A look at the court case illuminates the problems in opposing limit laws that are aimed at dealing with such complaints. One of the laws limited owners to two dogs, with an exemption for puppies under six months of age. The second law allowed owners to keep up to four dogs if they obtained a permit and to keep more than four dogs if they got permission from their neighbors. There was no grandfather clause; if owners could not get approval from all neighbors within 100 feet of their property line, additional dogs would have to be placed elsewhere or surrendered to authorities. Penalty for failure to get neighbors' permission was 90 days in jail and a $700 fine.

The request for judgment came from Mary P. Holt, who rescued and fostered Newfoundlands, and Cynthia Eveslage, a dog trainer and breeder. Holt had 12 dogs and no permit; Eveslage had three adult dogs and a permit to keep up to four dogs. Neither woman contacted neighbors to get permission to keep more than four dogs.

The women made several arguments:

• The ordinances were not rationally based on evidence that indicated a two-dog limit was warranted by conditions in Sauk Rapids. They argued that there is no such evidence and that the number was arbitrarily chosen.
• The provision requiring a permit to own up to four dogs lacked criteria or standards for issuance.
  The absence of a grandfather clause and the requirement to get neighbors' permission to keep more than four previously owned dogs allowed for the taking of property without just compensation.
• The ordinances amount to ex post facto laws; i.e., they criminalize an act that was innocent when it was committed.

The city countered with a request for its own summary judgment based on two factors: that women had not exhausted all legal remedies because they had not asked their neighbors for permission to have more than four dogs and because there was no proof that the Constitution protects dog ownership.

The first decision

Holt and Eveslage compiled reports of complaints involving dogs in the city and demonstrated that the complaints were not related to numbers. They also offered depositions of six officials who testified that there was no evidence that supported the limits before they were passed.

The judge found for the plaintiffs on the constitutional grounds that the city had abused its power to create laws that promote the general health, safety, and welfare of the citizens and violated the guarantee of due process before property is taken. He said that the city failed to provide relevant evidence that the laws were needed, declared the laws unconstitutional, and enjoined the city from enforcement. However, he did not award damages or attorneys fees.

The appeal

The appellate court had a different idea. Writing that laws are considered constitutional unless someone proves they are not, the court determined that the women had not proved their case and that the city had the right to use dog limits as a method of dealing with the noise and odor problems attributed to dogs in complaints filed with the mayor’s office.

The decision states: “Here, testimony showed that dogs were the number one complaint at city hall and that the mayor initiated the ordinance to address problems with dog noise and dog odor. It is at least debatable that limiting the number of dogs per residential unit is substantially related to controlling the problems of dog noise and odor, or to the health and general welfare of the community as affected by dogs. There is a rational relationship between the ordinance and solving the problems caused by dogs. Sauk Rapids' failure to consider empirical evidence before adopting the ordinance does not render the ordinance unconstitutional.”

Commonwealth v Creighton

Holt and Eveslage used a 1994 Pennsylvania decision (Commonwealth v Creighton) to support their suit. In that case, a court in Allegheny County, Pennsylvania, removed an ordinance that limited residents to five pets. In resolving that case, the judge quoted from Kadash vs City of Williamsport, 1975: “What is not an infringement upon public safety and is not a nuisance cannot be made one by legislative fiat and then prohibited. Even legitimate legislative goals cannot be pursued by means which stifle fundamental personal liberty when the goals can otherwise be more reasonably achieved.”

The Minnesota Appellate Court found that decision lacking in persuasiveness and noted that while a number limit is not the only way to deal with complaints about dog noise and odor, it is not an unreasonable attempt to find a solution.

The Sauk Rapids case was supported by the Minnesota Coalition of Dog Clubs; the attorney for the plaintiffs was Marshall Tanick, national attorney for the American Dog Owners' Association.

[More on limit laws, breed bans and other dog laws]

(Revised: March 2009)

Norma Bennett Woolf

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