10/19/2009 Annual Town Meeting - Laserfiche WebLink

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LOUISON, COSTELLO, CONDON & PFAFF, LLP Ms. Joyce M. Mason 't Town Manager �y August 13, 2009 Page 3 , Endorsement of the Canton Bylaw by the Office of the Attorney General pursuant to G.L. c.40, Vol §32 noted the Attorney General's limited power of disapproval, which requires determination of ?` a facial inconsistency between the Bylaw adopted by the Town and the Constitution and laws of the Commonwealth. While the Attorney General's office did not determine that any such a inconsistency exists with respect to the Canton Bylaw, on two separate occasions it did note that the Attorney General's approval does not constitute an opinion as to whether the subject Bylaw would withstand judicial scrutiny on constitutional grounds. Bylaws and ordinances similar to the proposed Pit Bull Regulation have been passed by municipalities and states across the country, and state and federal courts have upheld theEk Eg'' constitutionality of said bylaws and ordinances under both state and federal constitutions. ; I However,the Massachusetts Supreme Judicial Court("SJC") in the case of American Doi Owners Association v. City of L ry_m, 404 Mass. 73 (1989),ruled that the City of Lynn's ordinance seeking to regulate Pit Bulls was void and unenforceable on constitutional "vagueness"grounds because the definition of the dogs to which the ordinance would be applicable did not provide objective standards upon which city officers could base the exercise of their discretion while enforcing the ordinance. This 1989 decision of the SJC is the last appellate court decision comprehensively addressing this issue rendered by courts in Massachusetts. In essence, the SJC concluded that an animal control bylaw, such as that proposed by the Mashpee petitioners,which imposes a penalty on violators, including the forfeiture of property (banishment of a dog), in an effort to protect the public against injury is a penal regulation which is subject to scrutiny under the vagueness doctrine of the United States and Massachusetts �i Constitutions. Such a Bylaw must define the activity proscribed with sufficient definiteness that ordinary people can understand what conduct is prohibited. American Dog Owners Association Inc.,404 Mass. at 78. Bylaws or ordinances which do not clearly set forth criteria for their application violate due process rights of individuals because they"do not limit the exercise of discretion by officials [and, thus,] engender a possibility of arbitrary and discriminatory �� r enforcement". Id at 79. h� In the Lynn case, the trial judge determined that the general definition of"Pit Bulls"set forth in the ordinance provided no scientific means by blood enzyme or otherwise to !6 determine if a dog is a particular breed or any mixture thereof; that the dog officers of the City of Lynn applied conflicting, subjective standards for ascertaining which animals were to be defined as "Pit Bulls"under the ordinance, and that the ordinance failed to provide law enforcement officials with ascertainable standards by which to enforce the ordinance. Based upon these w� ; findings, the trial court concluded, and the SJC agreed, that the ordinance listing three types of s, dogs (American Staffordshire, Staffordshire Pit Bull Terrier or Bull Terrier), two of which were of"dubious existence", and one ("any mixture thereof') which was impossible to ascertain,was void for vagueness. The SJC noted that if identification of a dog by breed name does not provide sufficient ascertainable standards for enforcement, other"definitions"of"Pit Bull"which are ,,�