To avoid confusion in the enforcement of such laws at all levels, there is an order of supremacy with each level of law. This concept, known as preemption, ensures that laws at the highest level of government trump those conflicting laws at lower levels of government. Thus, federal laws enacted by Congress will override state laws intended to regulate the same subject and local ordinances that conflict with state laws concerning the same matter will defer to the state legislation. Because each level of government is empowered to enact such laws, the federal and individual state constitutions have preemption clauses that specifically state conflicting laws must yield to the higher federal or state laws. The Supremacy Clause of the Federal Constitution states:
This Constitution and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const. art. VI, cl. 2. Preemption on the federal level may be found where Congress's intent to preempt the field is either expressly stated or implicit in congressional policy. Brotherhood of Maint. of Way Employees v. Chicago & N.W. Transp. Co., 514 N.W.2d 90, 93 (Iowa 1994).
Claims of federal preemption of dog laws are unusual, as the federal government gives great deference to state laws that affect citizens’ health, safety, and welfare. (However, see Black Hawk County v. Jacobsen, 2002 WL 1429365 (Not Reported in N.W.2d Iowa App.), 2002, where respondent alleged that local kennel licensing regulations were preempted by the federal Animal Welfare Act despite the fact the Act expressly contemplates state and local regulation of animals). Moreover, the inherent sovereign nature of the state recognizes that a state is better equipped to address those things that affect the general welfare of its citizens. Thus, preemption challenges to local ordinances typically involve concurrent regulation of dogs at the state level. (For a related discussion of state and federal powers in the regulation of wildlife, see Web Center Intro to Federal Wildlife Law).
Preemption will generally occur where a local municipality attempts to regulate a subject matter for which the state has expressed exclusive control. While the presumptive test is whether the ordinance on its face preempts existing state or federal legislation, courts often employ a multiple part test to determine preemption. The Minnesota Court of Appeals articulated one such test with regard to a challenge to the state’s dangerous dog laws:
(a) Generally, conflict occurs when "the ordinance and the statute contain express or implied terms that are irreconcilable";
(b) more specifically, an ordinance conflicts with state law if it "permits what the statute forbids";
(c) similarly, there is conflict if the ordinance "forbids what the statute expressly permits"; and
(d) "no conflict exists where the ordinance, though different, is merely additional and complementary to or in aid and furtherance of the statute."
Hannan v. City of Minneapolis, 623 N.W.2d 281, 284 (Minn.App., 2001). Similarly, the New Jersey Supreme Court has applied a multi-part test in its preemption analysis:
1. Does the ordinance conflict with the state law, either because of conflicting policies or operational effect, that is, does the ordinance forbid what the Legislature has permitted?
2. Was the state law intended expressly or impliedly to be exclusive in the field?
3. Does the subject matter reflect a need for uniformity?
4. Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation?
5. Does the ordinance stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the Legislature?
State v. Smith, 685 A.2d 73, 76 (N.J.Super.L.,1996), derived from Overlook Terrace Management Corp. v. West New York Rent Control Bd., 71 N.J. 451, 460-62, 366 A.2d 321 (1976), referred to as the “Overlook Test. Both of these cases involved the construction of local dangerous dog ordinances in light of comprehensive state schemes for controlling dangerous dogs. However, each court came to a different result on the issue of preemption.
In Hannan, supra, a local realtor contended that the city ordinance conflicts with state law, because the ordinance "permits what the statute forbids." Id. at 284 The realtor’s dog in Hannan was adjudicated dangerous and sentenced to death for violation of a local ordinance. The court found that realtor’s contention, however, fit squarely under point “d” in the Minnesota test above, in that the local provision was “merely additional and complementary” to the statute. Id. Thus, local action that may even be more severe than the overriding state statute will not be invalidated as long as the state has not expressly precluded local regulation of the area and there is no conflict with state statutes. (See City of Duluth v. Evans, 158 Minn. 450, 452 197 N.W. 737, 737 (1924), "Ordinances may be valid when they relate to the same matter as a state law, even though the punishment prescribed in both be not the same." (citation omitted)). In fact, "statutes and ordinances on the same subject are intended to be coexistent." State v. Dailey, 284 Minn. 212, 215, 169 N.W.2d 746, 748 (1969)). While concurrent regulation of a subject matter is often intended, state statutes may envision exclusive control.
A local ordinance may be invalidated for attempting to regulate a subject matter that is provided by law to be exclusively under state control. While on its face the ordinance may appear to complement the statute, its procedural functioning conflicts with the state statute. In State v. Smith, 685 A.2d 73 (N.J.Super.L.,1996), a dog owner challenged a Hoboken, New Jersey ordinance relating to vicious dogs. Applying the Overlook Test, the court found that the state law preempted the local statute because the state law functions as the sole regulator of this subject matter. (N.J.S.A. 4:19-17 through 4:19- 36, known as the “Vicious and Potentially Dangerous Dog Act”). The court noted that, “[a]t a minimum, the plain language of N.J.S.A. 4:19-36 declares the State's intention that the statute constitutes the exclusive law in this area.” Id. at 405-406. But it was the procedural enforcement of the conflicting laws that led to the ordinance’s invalidation. “Perhaps more importantly, however, is the danger that the procedural features of a municipal ordinance would conflict with the dictates of the statute--as they did in this case--thus inevitably leading to confusion among the parties and the inefficient enforcement of the Act.” Id. at 406. Also underlying the court’s decision that the ordinance was preempted, was the apparent denial of due process in the ordinance.
Challenges based on preemption claims will also fail unless the state legislature has evinced an intent, either expressly or impliedly, to exclusively regulate the activity. The statute must provide that, through its terms, the subject matter is solely a matter of state concern. Hannan, 623 N.W.2d 281. It is not enough that a state has merely provided a detailed statutory scheme. In Hannan, the realtor whose dog was subject to impoundment argued that the state law in the area of dangerous dogs demonstrated an intent for state regulation, as the legislature fully and completely covered the subject matter. Further, as stated by petitioner, “the subject matter is of such a nature that local regulation would have unreasonably adverse effects on the general populace.” Id. at 285. The court disagreed, finding instead that state law expressly provided for local regulation through Minn.Stat. § 347.53 (2000), which gives municipalities full authority to regulate "potentially dangerous dogs," as long as the regulations are not breed-specific. See, Minn.Stat. § 347.51, subd. 8 (2000). In addition, the court found that “Minn.Stat. § 609.227 (2000), which mandates destruction if the owner has committed a misdemeanor or gross misdemeanor for a crime involving the animal, specifies that the ‘section shall not preempt local ordinances with more restrictive provisions.’" Id.
The court’s analysis underscores the notion that a provision for local regulation can be implied by statute, even in the negative. In fact, Minn.Stat. § 347.51, subd. 8 (2000) does not expressly provide that local regulation is permissible, but rather states that only ordinances based on breed-specific parameters are invalid. As stated by the court, “[b]y providing only one express limitation to regulation--that regulation not be breed-specific--the legislature has implicitly given municipalities full authority to regulate dangerous dogs.” Hannan at 285. Thus, an exception, proviso, or savings clause will be construed to include all other provisions. However, the ultimate test for determining whether a local ordinance conflicts with a state statute, is whether the ordinance permits or licenses that which the statute forbids and prohibits, or vice versa. Jefferson v. Mirando, 719 N.E.2d 1074 (Ohio Co.,1999).
The previous cases demonstrate the prevalence of dangerous dog regulation at both the state and local level in recent years. States usually provide for the regulation of dangerous or vicious dogs by statute. Often, local units that are given broad police powers to regulate dogs may also create ordinances that regulate dangerous dogs. States may provide for stricter local regulation of dangerous dogs by statute. However, ordinances that “leave no room for concurrent jurisdiction” or cannot be harmonized with the state dangerous dog law will generally be invalidated. Rabon v. City of Seattle, 957 P.2d 621, 626 (Wash.,1998). This situation occurred in the case of Rabon. Petitioner contended that the trial court erred by denying a preliminary injunction preventing destruction of his two dogs pursuant to Seattle animal control ordinances because the local ordinances conflicted with state statutes governing dogs. Initially the court noted that the Washington Constitution, Article XI, section 11, provided that "[a]ny ... city ...may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." Id. at 624-625. Thus, the court observed, a municipality may enact an ordinance touching upon the same subject matter, as long as the state law does not purport to be the exclusive regulator. Id.
The ordinance at issue in Rabon demanded the destruction of the dogs who had not actually bitten a person, pursuant to SMC 9.25.030(A)(4) (which authorizes the City's finance director to order the humane destruction of a vicious animal where, among other things, the owner has been found guilty of owning a vicious animal). The state law relating to dangerous dogs provided that “potentially dangerous dogs” shall be regulated only by local, municipal, and county ordinances. In fact, the statute provided that, "[n]othing in this section limits restrictions local jurisdictions may place on owners of potentially dangerous dogs." RCW 16.08.090(2). While petitioner conceded that there was no express statement evincing preemption, the intent appears by necessary implication. Petitioner contended that since the local ordinance did not distinguish between “dangerous dogs” and “potentially dangerous dogs,” instead using the term “vicious,” the local law was preempted by the state law dealing with dangerous dogs. The court disagreed, finding that concurrent jurisdiction was provided by statute. Further, the statutes do not merely provide for concurrent jurisdiction, but rather expressly provide that sole jurisdiction over "potentially dangerous" dogs lies only with local government. Id.
The court finally rejected petitioner’s contention that the ordinance forbids possession of dangerous dogs while the state statute expressly allows such possession under RCW 16.08.080. The court held that a local ordinance may require more than state law requires where the laws are prohibitive. Lenci v. City of Seattle, 63 Wash.2d 664, 671, 388 P.2d 926 (1964). “In exercise of its police power a municipality may wish to provide further protection from dangerous or vicious animals.” Rabon. at 292.
In a strong dissent, Justice Sanders states that RCW 16.08 sets out a comprehensive legislative scheme for regulating both the registration and execution of dangerous dogs. RCW 16.08.080; RCW 16.08.100. The state statute classifies dogs into two categories (dangerous and potentially dangerous) whereas the local ordinance did not. This creates confusion because the statute by its express terms only allows local authorities to place restrictions on potentially dangerous dogs. Thus, “[b]y eviscerating RCW 16.08's dual definitions of dogs, the City directly clashes with state statute." Id. at 299. Further, RCW 16.08 indicates the Legislature did not intend municipalities to impose greater restrictions on "potentially dangerous" dogs than those applicable to "dangerous" dogs because RCW 16.08.100 allows for execution of a "dangerous" dog in only limited and specific circumstances. This anomaly would encourage dog owners and defense attorneys to contend that the bite was so vicious that the dog qualifies as "dangerous" in order to spare the dog's life. This case demonstrates the difficulty that can arise with concurrent jurisdiction, especially in a heavily regulated area such as dangerous dogs.
A claim of preemption will not necessarily be sustained even if there is complex legislative regulation by the state of the subject matter. In fact, most courts will defer to the municipality’s exercise of police power. In Muehlieb v. City of Philadelphia, 574 A.2d 1208 (Pa.Cmwlth.,1990), the court denied a homeowner’s claim of preemption where the city sought to restrain her ownership of more than twelve dogs at her residence as a violation of a city code. Appellant argued that the state’s Dog Law, which apparently restricted ownership to less than 50 dogs, preempted the city’s Animal Control Law. The test, according to the court, called for an analysis of:
. . . whether the field or subject matter in which the ordinance operates, including its effects, is the same as that in which the state has acted. An affirmative answer calls for a further search for it is not enough that the legislature has legislated upon the subject. The ultimate question is whether, upon a survey of all the interests involved in the subject, it can be said with confidence that the legislature intended to immobilize the municipalities from dealing with local aspects otherwise within their power to act.
Id. at 1210. In denying plaintiff’s argument for preemption, the court stated her interpretation would grant “the unfettered right to house up to fifty dogs in her home without regard to the City's legitimate interest in protecting the health, safety and welfare of its residents.” Id. at 1211. There was nothing so comprehensive and pervasive in the Dog Law to preclude the City from exercising its police powers to limit the number of dogs under its Animal Control Law for the protection of the health, safety, and welfare of the citizens of Philadelphia. Indeed, the court found that the focus of the Dog Law is on the protection of dogs while the emphasis of the City's Animal Control Law is the protection of the health, safety and welfare. As a result, the court found significant the different interests sought to be protected under each law.
In a footnote, the court further added that the intent for local regulation is evidenced by the fact that that county and city treasurers play an important role in the collection of fees and in record keeping under the Dog Law. “We believe this evidences an intent by the legislature to permit, rather than preempt, local action in the area of dog regulation.” Id. at 1211. Notably, nearly every state provides by statute for some collection of license fees and dog taxes by statute. Under the Muehlieb reasoning, it can be argued that this legislative direction evinces an intent for local regulation of dogs, regardless of overriding state laws.
Many states provide that an empowered local official can summarily destroy loose and unlicensed dogs. Because local authority is often provided by state statute to license dogs within a city, the companion authority to impound or even destroy any unlicensed dogs is also granted. However, where a state statute provides for destruction of loose dogs, and a local ordinance suggests a different procedure to handle loose dogs, a preemption challenge may be asserted.
In Vukic v. Brunelle, 609 A.2d 938 (R.I.,1992), such a preemption challenge was presented. In that case, the dog owners challenged a state law that permitted local units to enact measures to destroy loose dogs after a dog officer shot and killed a Great Dane dog and her pup after the dogs escaped from the owners’ yard and wandered to another residence. The defendants contended that the language of RI ST § 4-13-12 that directed specially appointed dog officers to destroy all dogs found at large without a license superseded any local ordinances to the contrary. Id. Thus, the officer was carrying out his duty when he destroyed the two dogs. However, the plaintiffs argued that the terms of § 4-13-1 permitting municipalities to enact local dog ordinances "as they shall deem expedient" gave the town of Lincoln the right to create a procedural safeguard to ensure that prior to destroying unlicensed dogs every effort is made to find and notify the dog owners. See, Vukic at 941, citing Lincoln, R.I.Code § 3-26. Thus, the plaintiffs asserted that the Lincoln ordinance did not countermand the existing state statute, but rather attempted to mitigate the harsh result envisioned by the state statute. The court disagreed, finding that the defendant acted according to law when he destroyed the Great Danes. Thus, the Lincoln ordinance was superseded by the provisions of § 4-13-12.
The broad language of § 4-13-1 enabling municipalities the power to pass local dog ordinances "as they shall deem expedient" was not intended to supplant the statewide scheme for regulating dogs set out in chapter 13 of title 4 of the General Laws. Id. This intent, the court found, could be seen in the savings clause included in § 4-13-3, which provided that "[n]othing in this chapter shall be so construed as to repeal any ordinance concerning dogs, not inconsistent with the provisions hereof, which has heretofore been passed by any town or city council." RI ST § 4-13-3. Despite the statute’s harsh result, the court held that Section 4-13-12 mandated that dog officers and other appropriate officials "shall [ ] kill or destroy or cause to be killed or destroyed, all dogs going at large and not licensed and collared according to law." Id. at 941-942. Thus, any obligation that was created by the Lincoln ordinance to impound the dogs instead of killing them “must fall away in the face of the paramount state statute.” Id. at 942. (For more on local dog impound laws and due process, see Detailed Discussion of Dog Impound Laws).
There appears one area of municipal dog regulation susceptible to preemption; that of the imposition of criminal sanctions against dog owners for violation of local codes. In Responsible Dog Owners of Texas v. City of Richardson, 781 S.W.2d 667 (Tex.App.-Dallas,1989), the plaintiffs appealed an adverse summary judgment in favor of the City of Richardson that upheld a City of Richardson ordinance regulating vicious and dangerous animals, which specifically provided restrictions on the ownership of pit bull dogs.
Plaintiffs asserted that the ordinance was preempted by the enactment of the Texas Penal Code. The court first observed that the criminal codes provides that “no governmental subdivision or agency may enact or enforce a law that makes any conduct covered by this code an offense subject to a criminal penalty. This section shall apply only as long as the law governing the conduct proscribed by this code is legally enforceable.” Id. at 668; Tex. Penal Code Ann. § 1.08 (Vernon 1974). While the code provided for home rule authority by the city, the accompanying practice notes suggested that many previous laws employing a penal sanction enacted by municipalities have overlapped, duplicated, and conflicted with the state penal laws. Responsible Dog Owners, supra.
In reviewing the state law and the City of Richardson ordinance, the court found the city was attempting to regulate the conduct of owners as well as the ownership of certain vicious animals, more particularly pit bull dogs. In doing so, this ordinance attempted to regulate conduct already regulated by the Texas Penal Code. In deferring to what it termed a “commendable effort” by the city to protect its citizens, “the proper avenue for relief from the dangers of pit bull dogs, if such dangers in reality exist, lies with the Texas Legislature.” Responsible Dog Owners, 781 S.W.2d at 672 Thus, where city ordinances attempt to regulate dogs by providing criminal sanctions against the owners where state law already provides for a criminal offense, preemption occurs.
An examination of dog law litigation shows that preemption appears most likely to occur in those heavily regulated areas of state law, such as dangerous dogs or criminal laws. This is to prevent confusion in the application of dog law. There are, however, certain subjects that lend themselves to local control across most states. Some of these areas are expressed by statute while others are implied. Regardless of the nature of the control, constitutional parameters must be met.