10/19/2009 Annual Town Meeting - Laserfiche WebLink

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LOUISON, COSTELLO, CONDON & PFAFF, LLP e h Ms. Joyce M. Mason Town Manager e August 13, 2009 Page 4 devoid of any reference to a particular breed,but rely instead on the even less clear"common understanding in usage" of the term"Pit Bull", are clearly not sufficiently definite to meet due process requirements. Dog owners must receive fair notice from the bylaw or ordinance of the conduct proscribed or the dog"types"covered by the bylaw or ordinance. The Court distinguished bylaws or ordinances which propose to ban or regulate certain breeds of dog from a bylaw which generally prohibits the keeping of a"vicious"dog,the enforcement of which involves questions of fact whether a particular dog is vicious or known by its owner to be vicious, or a strict liability restraint or dog bite law, such as G.L. c.140, §155. The former ' bylaws or ordinances,which regulate based upon breed identification, depend for enforcement upon the subjective understanding of dog officers or the appearance of an ill-defined "breed", & '" leaving dog owners to "guess" at what conduct or dog"look" is prohibited, and requires proof of a dog's"type" which, unless the dog is registered,may be impossible to furnish. The Court4 reasoned such a bylaw or ordinance gives unleashed discretion to the dog officers charged with .roal enforcement and clearly relies on their subjective speculation whether a dog's physical characteristics make it what is "commonly understood"to be a Pit Bull. Id at 80. p'" With the SJC analysis from the American Dog Owners Association case in mind, and the Endorsement of the Attorney General relative to the Canton Regulation of Pit Bull Bylaws as precedent,I do believe that the proposed Pit Bull Regulation submitted by the Mashpee , petitioners would be endorsed by the Office of the Attorney General as consistent with the I Constitution and Laws of the Commonwealth. Whether the proposed Bylaw would pass judicial ? '� scrutiny upon challenge on constitutional grounds is a more difficult question. The definition of "Pit Bull"set forth in Section 2 of the proposed Bylaw is more definitive in nature than that reviewed by the SJC in the Lynn case. It identifies dogs by breed, i.e. "American Pit Bull Terrie ' (sic),American Staffordshire Terrie(sic),Staffordshire Bull Terrier, or any dog of mixed breed displaying the majority of the physical traits of any one(1) or more of the above breeds". The definition furthermore specifies "or any dog exhibiting those distinguishing characteristics which substantially conform to the standards established by the American Kennel Club or United w Kennel Club for any of the above breeds, such characteristics being identifiable as an element of its breeding by a licensed veterinarian, by the animal control officer, or by any other qualified person, or any dog registered or licensed as a pit bull". The proposed Bylaw specifically excludes from the definition of pit bull "any dog with proof by American Kennel Club or United Kennel Club papers or by a written certification or written notice from a veterinarian licensed in the Commonwealth of Massachusetts that the dog does not contain in its lineage any American Pit Bull terrier, American Staffordshire Terrier, or Staffordshire Bull Terrier. As per an animalr' DNA lineage test(sic)". I assume that this last quoted sentence was intended to be drafted as a MA,; " single sentence, i.e.,the phase"As per an animal DNA lineage test"to be incorporated into the prior sentence. This specific definition,with standards established by recognized kennel clubs and potential certification by veterinarians and/or DNA lineage tests,would, in my opinion, i p support a compelling argument that the subject Bylaw is not unconstitutional due to vagueness,