State Of Washington v. Jennifer A. Richards ( 2023 )

Filed
Washington State
Court of Appeals
Division Two
November 7, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 56949-3-II
Respondent,
v.
JENNIFER A. RICHARDS, PUBLISHED OPINION
Appellant.
GLASGOW, C.J. — Jennifer Richards’ dog, Thor, twice bit another dog unprovoked. As a
result, Wahkiakum County determined that Thor was a dangerous dog under chapter 16.08 of the
Revised Code of Wahkiakum County (RCWC). One evening, Richards left Thor alone and
unsecured on her property. The county charged Richards with violating RCWC 16.08.050(F), an
ordinance that makes it unlawful for a dangerous dog to be outside a proper enclosure unless the
dog is muzzled and restrained by a substantial leash or physically restrained by a responsible
person. Neither state statute nor the county code authorizes destruction of the dog without an
opportunity to cure a violation like this one.
After a bench trial on stipulated facts, the district court found Richards guilty and imposed
the maximum jail time of 364 days. However, the district court told Richards that it would suspend
the sentence if Richards were to turn Thor over to animal control the next day.
Richards appealed her conviction and sentence to the superior court, and the superior court
affirmed. The superior court granted a stay pending appeal.
No. 56949-3-II
Richards sought discretionary review in this court, arguing that RCWC 16.08.050(F) is
void for vagueness, that the statutory definition of a dangerous dog preempts the county’s
definition, that her conduct did not satisfy the elements of RCWC 16.08.050(F), that she was not
subject to punishment under the county code, that the district court abused its discretion by
imposing a sentence that forced her to choose between Thor’s destruction and jail, and that the
sentence was cruel and unusual in violation of the state and federal constitutions. A commissioner
of this court granted discretionary review.
We affirm Richards’ conviction for a gross misdemeanor under the ordinance, but we
remand for the district court to clarify that Richards was not convicted of any violation of the
statute. In addition, because the district court imposed a condition on the suspension of Richards’
sentence that was untethered from statutory and county code prerequisites to destroying a
dangerous dog, we reverse the sentence and remand for resentencing.
FACTS
I. BACKGROUND ON DANGEROUS DOG CODES
The legislature has defined a dog as “dangerous” if the dog was previously found to be
potentially dangerous because it injured a human, the owner received notice of that designation,
and the dog “again aggressively bites, attacks, or endangers the safety of humans.” RCW
16.08.070(2)(c) (emphasis added). The two other alternative statutory definitions of a dangerous
dog respectively require proof that the dog severely injured a human being or that the dog killed a
domestic animal.
In contrast, under the Revised Code of Wahkiakum County, a dog is a “potentially
dangerous dog” when, unprovoked, it bites “a human or a domestic animal either on public or on
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private property.” RCWC 16.08.010 (emphasis added). Under the county code, a dog is a
“dangerous dog” when the county has previously found it to be a potentially dangerous dog, the
owner has received notice of that designation, and “the dog again aggressively bites, attacks[,] or
endangers the safety of humans or domestic animals.” RCWC 16.08.010 (emphasis added).
The Revised Code of Wahkiakum County makes it “unlawful for an owner of a dangerous
dog to permit the dog to be outside [a] proper enclosure unless the dog is muzzled and restrained
by a substantial chain or leash and under physical restraint of a responsible person,” even if the
dog is on the dog owner’s property. RCWC 16.08.050(F). Unless otherwise specified, any
violation of chapter RCWC 16.08 of the county code is a civil infraction with a maximum penalty
of $250. RCWC 16.08.090(C). RCWC 16.08.090(B) states, “Any person violating any of the
provisions of” RCWC 16.08.050, the county ordinance on dangerous dogs, “shall be subject to the
punishments prescribed by Chapter 16.08 of the Revised Code of Washington.” (Emphasis added.)
Under chapter 16.08 RCW, any “dangerous dog shall be immediately confiscated by an
animal control authority if the . . . dog is outside of the dwelling of the owner, or outside of the
proper enclosure and not under physical restraint of the responsible person.” RCW
16.08.100(1)(d). This subsection requires the animal control authority to give the owner notice of
the reason for the confiscation. Id. It states that the “animal control authority shall destroy the
confiscated dangerous dog . . . if any deficiencies required by this subsection are not corrected
within twenty days of notification.” Id. (emphasis added). “In addition, the owner shall be guilty
of a gross misdemeanor.” Id.
The county code also addresses the circumstances when it authorizes impoundment and
destruction of a dangerous dog. Upon a violation under county code, the dog is subject to
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impoundment. RCWC 16.08.110(A). Alternatively, law enforcement can allow the dog to remain
with its owner if the officer reasonably believes “doing so will not endanger the health, safety[,]
or property of any person, or endanger the dog.” RCWC 16.08.110(B). If the dog is impounded,
the owner must be notified. RCWC 16.08.110(C). The owner may redeem the dog from
impoundment after paying costs and fees, in addition to providing evidence that they have
corrected the violation. RCWC 16.08.110(D).
The animal control authority must hold an impounded dog for at least 96 hours, not
including weekends and legal holidays. RCWC 16.08.110(E). If the impounded dog is not
redeemed within 96 hours, the animal control authority may have it destroyed in an expeditious
and humane manner. Id. But the owner may redeem the dog at any time before it is destroyed. Id.
The county code otherwise allows immediate destruction of the dog in limited
circumstances. The animal control authority may immediately destroy a dog if “a dog is suffering
from a serious injury or disease, and destroying the dog is in the interest of public health and safety,
or in the interest of the dog.” RCWC 16.08.110(F) (emphasis added).
II. FACTUAL BACKGROUND
Richards lived in Wahkiakum County with her daughter, who had a disabling health
condition. When Richards’ daughter was six years old, Richards introduced a dog named Thor into
the family. Richards explained that Thor became her daughter’s emotional support animal.
In 2018, the county designated Thor a potentially dangerous dog under its code after Thor
bit another dog without provocation. Richards received notice of the designation but did not appeal
it.
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About a year later, the county designated Thor a dangerous dog under its code after “Thor
again aggressively bit and endangered the safety of” another dog. Suppl. Clerk’s Papers (CP) at
168. Richards appealed the dangerous dog designation. The Wahkiakum County District Court
upheld the designation after a hearing, finding that Thor met the definition of a dangerous dog in
the county code.1 Richards did not appeal the district court’s finding.
III. CHARGE OF DANGEROUS DOG AT LARGE
In 2020, a deputy sheriff responded to a report of a dangerous dog “running loose.” Suppl.
CP at 255. The deputy saw Thor unsecured on Richards’ property while Richards was away getting
medication her daughter urgently needed that evening. The deputy called Richards, and she asked
if the deputy “could attempt to secure Thor in her residence.” Id. The deputy tried unsuccessfully
to calm Thor, who had been barking continuously. Thor then lunged at the deputy’s waist, “mouth
open” and “snapping his jaws.” Suppl. CP at 256. After Thor ran behind Richards’ home, the
deputy called for backup and watched Thor from afar until Richards returned. The deputy did not
impound Thor, instead leaving him in Richards’ care as authorized under the county code.
Wahkiakum County charged Richards with allowing Thor, who had a dangerous dog
designation, to be outside a “proper enclosure” while “neither muzzled nor under the physical
restraint of any responsible person.” Suppl. CP at 251. The charging document read, “Dangerous
Dog at Large is a violation of” RCWC 16.08.050(F) and RCW 16.08.100(1)(d). Id. The charging
document specified that pursuant to RCWC 16.08.090(B), allowing a dangerous dog to be at large
was “punishable by up to 364 days in jail,” “a $5,000 fine,” or both. Id.
1
The same judge presided over the dangerous dog proceeding and Richards’ later criminal
proceeding.
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No. 56949-3-II
IV. MOTION TO DISMISS
Before trial, Richards moved to dismiss the charge. First, she argued that she was not
subject to any punishment that chapter 16.08 RCW prescribed. She explained that the statutory
definition of a dangerous dog did not encompass dogs who bite other animals. Because Thor did
not meet the statutory definition, and because RCW 16.08.100(1) applied to dogs deemed
dangerous under state law, she could not be guilty of a gross misdemeanor under state law.2 As a
result, procedural “due process and the rule of lenity” meant she could be guilty of only a civil
infraction. Suppl. CP at 228. In the alternative, Richards argued that even if she were subject to
the punishment RCW 16.08.100(1) prescribed, the local animal control authority would have to
give her 20 days to comply with the subsection’s requirements before euthanizing Thor.
Second, Richards argued that because Wahkiakum County’s definition of a dangerous dog
conflicted with the statutory definition, it was preempted. She contended that while chapter 16.08
RCW stated that localities could “impose more restrictive code requirements on dangerous dogs,
. . . the threshold determination of whether a dog is ‘dangerous’ is not subject to alteration at the
municipal level, for the phrase ‘dangerous dogs’ has been explicitly defined by the state
legislature.” Suppl. CP at 229-230.
After a hearing, the district court denied the motion to dismiss. Framing Richards’
argument that she was not subject to punishment under chapter 16.08 RCW as an argument that
RCWC 16.08.050(F) was void for vagueness and violated due process, the district court held that
2
RCW 16.08.100(2) states that if a dangerous dog belonging to an owner with a prior conviction
under chapter 16.08 RCW “attacks or bites a person or another domestic animal, the dog’s owner
is guilty of a class C felony.” RCW 16.08.100(3) states that if a person’s dog “aggressively attacks
and causes severe injury or death” to a human being, that owner is guilty of a class C felony. The
State did not assert that either of these subsections applied to Richards.
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No. 56949-3-II
the county code provision was not unconstitutionally vague. The district court explained that the
“alleged facts of this case [were] very much akin to a dangerous dog being outside its enclosure
and not under restraint of a responsible person as described in RCW 16.08.100(1), which is
punishable as a gross misdemeanor.” Suppl. CP at 203. Thus, the “sensible, meaningful, and
practical interpretation” was that Richards faced a gross misdemeanor charge. Id.
Addressing Richards’ preemption argument, the district court concluded that the legislature
had not preempted the field of dangerous dog management, explicitly or by implication, and that
the ordinance did not irreconcilably conflict with its statutory counterpart. The district court
reasoned that enforcement was “very much delegated to local control.” Suppl. CP at 206. And it
reasoned that a “‘local ordinance may require more than state law requires where the laws are
prohibitive.’” Id. (quoting Rabon v. City of Seattle, 135 Wn.2d 278, 292, 957 P.2d 621 (1998)).
V. BENCH TRIAL AND SENTENCE
Richards waived her right to a jury trial and underwent a bench trial on stipulated facts.
She stipulated that Thor met the definition of a dangerous dog under the county code because,
“having been previously found to be potentially dangerous and the owner having received notice
of the finding, Thor . . . aggressively bit and endangered the safety of a domestic animal” for the
second time. Suppl. CP at 168. The parties stipulated that Thor had not been found to meet the
definition of a dangerous dog in any other way. And Richards stipulated that she had “permitted
Thor to be outside a proper enclosure,” and that at the time, Thor was not muzzled, “restrained by
a substantial chain or leash,” or “under the physical restraint of a responsible person.” Id.The trial court found Richards “guilty of the crime charged.” Suppl. CP at 173. Richards
had been charged with allowing a dangerous dog to be at large under both the county code, RCWC
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No. 56949-3-II
16.08.050(F), and state statute, RCW 16.08.100(1)(d). At sentencing, the prosecution
recommended that the district court impose the maximum sentence of 364 days in jail and a $5,000
fine, to be served until Richards gave Thor to the local animal control authority so he could be
“put down.” CP at 66. Richards asked for any sentence to be stayed pending appeal to the
Wahkiakum County Superior Court.
The district court imposed the maximum jail time of 364 days. But it told Richards, “You
shall not be required to go into custody if you provide written proof that the dog, Thor, has been
surrendered . . . by tomorrow at 3:00 p.m.” CP at 88. The district court added that if Richards were
to fail to surrender Thor by that time, she would have to report to jail and remain there until she
surrendered him. Although the district court did not explicitly say Thor would be destroyed upon
surrender, it appears that the judge, attorneys, and Richards all understood that Thor would be
destroyed. See CP at 66 (prosecutor stating that he “didn’t get into this job to kill dogs” but “this
is what needs to happen”); CP at 79 (Richards stating that she did not think it was “fair that [Thor]
would be put down”); CP at 81 (judge stating that “as a practical matter,” the punishment would
be “a death sentence for an animal”).
Richards asked if she could have a week to surrender Thor so that her boyfriend, who was
away, would have a chance to say goodbye. The district court denied her request. It said, “Ms.
Richards, you’ve had since . . . April of 2019 to come into compliance with the dangerous dog
registration requirements.” CP at 89. The district court added, “We are giving you a bit over 24
hours so that you can get your affairs in line, with both your daughter and your pet responsibilities
here, and that is how much time the [c]ourt is willing to allow under the circumstances of this
case.” Id.8
No. 56949-3-II
VI. APPEAL TO SUPERIOR COURT
Richards appealed her conviction and sentence to Wahkiakum County Superior Court and
moved for an emergency stay of her sentence. The superior court accepted review and granted an
emergency stay pending appeal. The superior court’s stay is still in place.
As she had in the district court, Richards argued that she was not subject to any punishment
chapter 16.08 RCW prescribed. She added that, in incorporating punishments available under state
law, Wahkiakum County had created an unconstitutionally vague ordinance. Richards also
maintained her preemption challenge. And Richards argued that “hitching [her] personal freedom
to the tormenting choice to kill her and her daughter’s dog [was] beyond cruel and unusual” under
the federal and state constitutions. CP at 24.
The superior court affirmed Richards’ conviction and sentence. Addressing Richards’
argument that she was not subject to punishment, the superior court concluded that the charging
document established “with specificity the code sections that authorize and impose the specific
sentence of the crime charged.” CP at 126. It added that there was “no vagueness in the ordinance
scheme.” Id. And the superior court rejected Richards’ preemption challenge.
With regard to the sentence, the superior court rejected Richards’ argument that the local
animal control authority had to give her time to comply with the county code before euthanizing
Thor, reasoning that the district court had broad authority to impose conditions on suspending the
sentence imposed. Finally, the superior court concluded that Richards’ sentence was not cruel
under the Washington Constitution.
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Richards sought discretionary review in this court of her conviction and sentence. A
commissioner of this court granted review under RAP 2.3(d)(2) (significant constitutional
question) and (3) (issue of public interest).
ANALYSIS
“RALJ 9.1 governs appellate review of a superior court decision reviewing” a district court
decision. State v. Brokman, 84 Wn. App. 848, 850, 930 P.2d 354 (1997). We review the district
court decision “to determine whether that court has committed any errors of law,” accepting any
“factual determinations supported by substantial evidence.” RALJ 9.1(a)-(b).
I. CONSTITUTIONAL CHALLENGES
The constitutionality of an ordinance is a question of law that we review de novo. See City
of Spokane v. Neff, 152 Wn.2d 85, 88, 93 P.3d 158 (2004). We interpret ordinances using the same
rules of statutory construction we employ for statutes. City of Spokane v. Douglass, 115 Wn.2d
171, 177, 795 P.2d 693 (1990). We presume an ordinance is constitutional, and the party
challenging it must prove that “the ordinance is unconstitutional beyond a reasonable doubt.” Id.A. Vagueness
Richards suggests that RCWC 16.08.050(F) is void for vagueness. She argues that there is
“ambiguity and lack of notice to the public . . . that a violation of” the ordinance is a “gross
misdemeanor.” Appellant’s Br. at 22. And she argues that the “lack of procedural due process”
means that this court should decriminalize the ordinance. Id. at 24. We disagree.
As an initial matter, when we evaluate “a void-for-vagueness challenge, we must determine
whether the challenged [ordinance] involves First Amendment rights.” In re Pers. Restraint of
Troupe, 4 Wn. App. 2d 715, 723-24, 423 P.3d 878 (2018). If the challenge does not implicate First
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No. 56949-3-II
Amendment rights, we evaluate the ordinance as applied to the particular facts of the case. Id. at
724. Richards does not argue that this case implicates her First Amendment rights, so we interpret
her challenge as an as-applied challenge.
The due process clause of the Fourteenth Amendment to the United States Constitution
“requires that citizens be afforded fair warning of proscribed conduct.” Douglass, 115 Wn.2d at
178. “To avoid unconstitutional vagueness” in violation of the due process clause, an ordinance
must both “define the offense with sufficient definiteness that ordinary people can understand what
conduct is prohibited,” and “establish standards to permit police to enforce the law in a
nonarbitrary, nondiscriminatory manner.” Neff, 152 Wn.2d at 88-89.
In determining whether an ordinance is sufficiently definite, we consider “the context of
the entire enactment” and we give the language “a sensible, meaningful, and practical
interpretation.” Douglass, 115 Wn.2d at 180. An ordinance fails the definiteness requirement
“‘when it forbids conduct in terms so vague that’” ordinary people “‘must guess at its meaning
and differ as to its application.’” Id. at 179 (quoting Burien Bark Supply v. King County, 106 Wn.2d
868, 871, 725 P.2d 994 (1986)). But this test “does not demand impossible standards of specificity
or absolute agreement.” Id. If ordinary people can generally “understand what the ordinance
proscribes, notwithstanding some possible areas of disagreement, the ordinance is sufficiently
definite.” Id. And we will not conclude that an ordinance is void for vagueness simply because we
believe it “could have been drafted with greater precision.” Id.In determining whether an ordinance provides adequate standards for enforcement, we ask
whether it “proscribes conduct by resort to ‘inherently subjective terms.’” Id. at 181 (quoting State
v. Maciolek, 101 Wn.2d 259, 267, 676 P.2d 996 (1984)). But the “fact that an ordinance may
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No. 56949-3-II
require a subjective evaluation by a police officer . . . does not mean the ordinance is
unconstitutional.” Id. Rather, the ordinance “is unconstitutional only if it invites an inordinate
amount of police discretion.” Id.For example, in State v. Harrington, Division Three held that the term “extreme mental
distress” in the first degree kidnapping statute did not make the statute unconstitutionally vague as
applied to the defendant’s conduct. 181 Wn. App. 805, 828, 333 P.3d 410 (2014). The statute
provided that a “person is guilty of” first degree kidnapping if they intentionally abduct “another
person with intent . . . [t]o inflict extreme mental distress.” RCW 9A.40.020(1)(d). The court
reasoned that while the phrase “‘extreme mental distress’ carries some uncertainty,” there was
“little ambiguity in the context of the distress” the defendant imposed on his former wife when he
threatened to kill her by pressing a gun to her forehead. Harrington, 181 Wn. App. at 828.
In contrast, in Neff, the Washington Supreme Court held that a municipal ordinance was
void for vagueness where the ordinance stated that, in determining whether a person had
manifested “‘the purpose of’” selling “‘an act of prostitution,’” law enforcement could consider
whether the person was “‘a known prostitute.’” 152 Wn.2d at 87 (quoting former SPOKANE
MUNICIPAL CODE 10.06.030(C), repealed by Spokane Ordinance C36289 (Oct. 3, 2022)). The
court reasoned that “the unqualified term ‘known prostitute’ may include anyone from a person
with a recent conviction for prostitution to a person who is simply loitering on a street where
prostitution occurs,” so the ordinance invited “an inordinate amount of police discretion.” Id. at
91.
Here, Richards has not demonstrated beyond a reasonable doubt that RCWC 16.08.050(F)
is void for vagueness. As an initial matter, the due process clause focuses on whether citizens have
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“fair warning of proscribed conduct.” Douglass, 115 Wn.2d at 178 (emphasis added). The
applicable legal test focuses on whether a person can understand what conduct is prohibited. See
id. Therefore, to the extent that Richards argues that a due process violation occurred because the
county code does not make it clear that a person who violates RCWC 16.08.050(F) commits a
gross misdemeanor, her argument fails.
Additionally, the language of this ordinance is sufficiently definite. The ordinance states,
“It is unlawful for an owner of a dangerous dog to permit the dog to be outside the proper enclosure
unless the dog is muzzled and restrained by a substantial chain or leash and under physical restraint
of a responsible person.” RCWC 16.08.050(F). As explained above, the county code specifies that
a dog is a “dangerous dog” when the county has previously found it to be a potentially dangerous
dog, the owner has received notice of that designation, and “the dog again aggressively bites,
attacks[,] or endangers the safety of humans or domestic animals.” RCWC 16.08.010. The chapter
also defines a “proper enclosure” as a “securely enclosed and locked pen or structure[] suitable to
prevent the entry of young children and designed to prevent the animal from escaping,” specifying
that the “pen or structure” must “have secure sides and a secure top.” Id. The remainder of the
language is specific enough to give the owner of a dangerous dog notice of what they must do
when the dog is outside a proper enclosure, even if there could potentially be disagreement about
terms like “substantial” and “physical restraint.” Overall, the ordinance defines the prohibited
conduct more precisely than the statute Division Three upheld in Harrington.
Finally, the ordinance provides adequate standards for enforcement. Unlike the term
“known prostitute” in Neff, which gave officers broad discretion in deciding who had violated the
ordinance, this ordinance limits officers’ discretion. Neff, 152 Wn.2d at 91. It directs officers to
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No. 56949-3-II
focus on dogs the county has designated as dangerous. And within that category, rather than simply
directing officers to focus on dangerous dogs who are unrestrained, the ordinance directs officers
to focus on dangerous dogs who are not restrained by particular defined methods.
We hold that RCWC 16.08.050(F) is not void for vagueness.
B. Conflict Preemption
Richards argues that Wahkiakum County’s definition of a dangerous dog conflicts with the
statutory definition of a dangerous dog in violation of article XI, section 11 of the Washington
Constitution. She contends that therefore, “the entire regulatory framework under which the
[c]ounty adjudicates dangerousness” is unconstitutional and no conviction under “RCWC
16.08.050(F) can stand.” Appellant’s Br. at 18. We hold that Wahkiakum County’s definition does
not unconstitutionally conflict with the state’s definition.
“Any county . . . may make and enforce within its limits all such local police, sanitary[,]
and other regulations as are not in conflict with general laws.” WASH. CONST. art. XI, § 11. Under
this section, a county’s “‘police power is broad, encompassing all those measures which bear a
reasonable and substantial relation to promotion of the general welfare of the people.’” Emerald
Enters., LLC v. Clark County, 2 Wn. App. 2d 794, 803, 413 P.3d 92 (2018) (quoting State v. City
of Seattle, 94 Wn.2d 162, 165, 615 P.2d 461 (1980)); see also Hugh D. Spitzer, Municipal Police
Power in Washington State, 75 WASH. L. REV. 495, 497 (2000) (“The police power of local
government is, at root, the inherent power of the community to regulate activities for the protection
of public health and safety.”).
Nevertheless, a “state statute preempts an ordinance if the statute occupies the field or if
the statute and the ordinance irreconcilably conflict.” Watson v. City of Seattle, 189 Wn.2d 149,
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171, 401 P.3d 1 (2017). “Field preemption occurs when there is express legislative intent to occupy
the entire field, or when such intent is necessarily implied.” Id. Conflict preemption occurs when
the ordinance “directly and irreconcilably conflicts with a state statute.” Rabon v. City of Seattle,
135 Wn.2d 278, 292, 957 P.2d 621 (1998).
An ordinance irreconcilably conflicts with a state statute where the ordinance authorizes
what the legislature has forbidden or the ordinance forbids what the legislature has explicitly
authorized, licensed, or required. State v. Kirwin, 165 Wn.2d 818, 825-26, 203 P.3d 1044 (2009).
We will not find preemption if “the two enactments can be harmonized.” Rabon, 135 Wn.2d at
292. Thus, “a local ordinance does not conflict with a state statute in the constitutional sense merely
because one prohibits a wider scope of activity than the other.” City of Seattle v. Eze, 111 Wn.2d
22, 33-34, 759 P.2d 366 (1988) (holding that there was no conflict between an ordinance and a
statute criminalizing disruptive conduct on buses because neither enactment explicitly permitted
any conduct, but rather differed “in terms of the scope of their prohibitions”).
For example, in Rabon, a dog owner argued that a city ordinance effectively forbidding
any possession of dangerous dogs violated article XI, section 11 of the state constitution because
a state statute allowed such possession with certain restrictions. 135 Wn.2d at 292. Interpreting
provisions in chapter 16.08 RCW, the Washington Supreme Court held that the city ordinance did
not conflict with state law. Id. at 293-94. The court reasoned that, rather than simply permitting
ownership of dangerous dogs, the state statute required owners of dangerous dogs to follow
registration requirements, so it was “prohibitory in nature.” Id. at 293. Therefore, the local
ordinance could “go further in its prohibition.” Id. The court further reasoned that a municipality
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exercising its police power “may wish to provide further protection from dangerous or vicious
animals.” Id.Here, Rabon is controlling, so we hold that there is no unconstitutional conflict. Chapter
16.08 RCW was amended after Rabon’s publication, but the legislature expressed no intention of
undoing Rabon or preempting broader or stricter local prohibitions on dangerous dog ownership.
See H.B. REP. ON SUBSTITUTE S.B. 6635, at 2, 57th Leg., Reg. Sess. (Wash. 2002) (stating that
according to Rabon, state law on dangerous dogs does not preempt similar local regulations and
those regulations “may even be more restrictive”). In this case, the county ordinance designates
more dogs as dangerous and thus places greater limits on dog ownership than the statute. So long
as Rabon remains good law, a local ordinance designed to protect the public from animals can
impose broader or stricter prohibitions than state law imposes. The county ordinance defining a
dangerous dog concerns public safety, a traditional subject for local government regulation.
Therefore, RCWC 16.08.010 does not preempt RCW 16.08.070(2).3
II. CHALLENGES TO RICHARDS’ CONVICTION FOR A GROSS MISDEMEANOR
Richards argues that her conduct did not meet the elements for a violation of the county
code or of state law.
As stated above, the rules of statutory interpretation apply to ordinances. Douglass, 115
Wn.2d at 177. We review questions of statutory interpretation de novo. Watson, 189 Wn.2d at 158.
3
For the first time in her reply brief, Richards raises a field preemption claim, suggesting that
through chapter 16.08 RCW, the legislature has occupied the field of dangerous dog regulation.
But an “issue raised and argued for the first time in a reply brief is too late to warrant
consideration.” Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549(1992). We therefore decline to consider Richards’ field preemption claim.
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Our primary objective in “interpreting an ordinance is to ‘ascertain and carry out the
[legislative body]’s intent’ by giving effect to the ordinance’s ‘plain meaning.’” Id. (quoting
Arborwood Idaho, LLC v. City of Kennewick, 151 Wn.2d 359, 367, 89 P.3d 217 (2004)). We derive
intent from plain language, “considering the text of the provision in question, the context . . . in
which the provision is found, related provisions, and the . . . scheme as a whole.” State v. Evans,
177 Wn.2d 186, 192, 298 P.3d 724 (2013).
A. Violation of RCWC 16.08.050(F)
Richards argues that she did not violate RCWC 16.08.050(F) because the Revised Code of
Wahkiakum County adopts elements of state law to define the crime of dangerous dog at large and
her conduct did not satisfy those elements. Specifically, Richards notes that Thor is not a dangerous
dog under the state statute. And she contends that, under RCW 16.08.100(1), the county was
required to prove that it gave her 20 days to comply with the requirements for owning a dangerous
dog before convicting her. We disagree.
RCWC 16.08.050(F) states, “It is unlawful for an owner of a dangerous dog to permit the
dog to be outside the proper enclosure unless the dog is muzzled and restrained by a substantial
chain or leash and under physical restraint of a responsible person.” A separate ordinance—RCWC
16.08.090(B)—designates the punishment for the crime of dangerous dog at large. It states that
any person who violates RCWC 16.08.050 “shall be subject to the punishments prescribed by”
chapter 16.08 RCW. RCWC 16.08.090(B) (emphasis added).
The plain language of these ordinances shows that the Wahkiakum Board of County
Commissioners did not intend to add elements to RCWC 16.08.050(F) by referencing state law.
Rather, the board intended to designate the punishment for violating RCWC 16.08.050(F) by
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referencing state law. RCWC 16.08.050(F), which defines the elements of dangerous dog at large,
does not refer to any state statutes. Only RCWC 16.08.090(B), which focuses entirely on penalties,
refers to “the punishments prescribed by” chapter 16.08 RCW. Therefore, the county did not have
to prove that it gave Richards 20 days to comply with the state law requirements for owning a
dangerous dog in order to convict her of violating the county code. And Richards stipulated to the
fact that Thor was outside a proper enclosure without a muzzle, without being leashed, and without
being restrained by a responsible person, so her conduct plainly violated RCWC 16.08.050(F).
B. Violation of RCW 16.08.100(1)
The trial court found Richards guilty “of the crime charged” and the complaint charged her
with violating the county code and RCW 16.08.100(1)(d). Suppl. CP at 173, 251. Richards argues
that she did not violate the statute, reasoning that the county “has not and cannot argue” that the
conviction is “supported by the stipulated facts.” Appellant’s Br. at 23 (emphasis omitted). The
county does not contend on appeal that Richards violated the statute. We agree that she did not
violate the statute.
RCW 16.08.100(1)(d) makes it unlawful for any “dangerous dog” to be “outside of the
dwelling of the owner, or outside of the proper enclosure and not under physical restraint of the
responsible person.” The definition of “dangerous dog” that applies for purposes of RCW
16.08.100 states that a dangerous dog is any dog that severely injures “a human being without
provocation,” “kills a domestic animal without provocation while the dog is off the owner’s
property, or . . . has been previously found to be potentially dangerous because of injury inflicted
on a human” and “again aggressively bites, attacks, or endangers the safety of humans.” RCW
16.08.070(2) (emphasis added).
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Although Richards was charged with violating RCW 16.08.100(1)(d) and the verdict stated
that Richards was “guilty of the crime charged,” Suppl. CP at 173, there is insufficient evidence
to support a conviction under the statute. Nothing in the record indicates that Thor has ever injured
a human being or killed a domestic animal. Therefore, Thor did not meet the statutory definition
of a dangerous dog, and Richards cannot be guilty of violating RCW 16.08.100(1)’s requirements
for dangerous dog ownership. We remand for the trial court to clarify that Richards was guilty of
a crime only under the county code.
III. CHALLENGES TO RICHARDS’ SENTENCE
A. Gross Misdemeanor
Richards argues that she cannot be punished under RCWC 16.08.090(B) because the
ordinance references statutory punishments and none of them apply to her. Richards adds that any
ambiguity around whether the statutory punishments apply requires us to find that under the county
code, she committed only a civil infraction, not a gross misdemeanor. The county responds that
“Richards’[] interpretation that there is no penalty for allowing a dangerous dog” to be “at large is
clearly contrary to legislative intent and must therefore be rejected.” Resp’t’s Br. at 25. We agree
with the county and hold that a person who violates RCWC 16.08.050(F) commits a gross
misdemeanor.
As noted above, RCWC 16.08.090(B) states that any person who violates RCWC
16.08.050 “shall be subject to the punishments prescribed by” chapter 16.08 RCW. In chapter
16.08 RCW, the only statute that prescribes punishments is RCW 16.08.100. Subsection (1), which
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defines a similar offense to RCWC 16.08.050, states that a dog owner who commits the offense
“shall be guilty of a gross misdemeanor punishable in accordance with RCW 9A.20.021.”4
Here, the plain language of RCWC 16.08.090(B) demonstrates that the Wahkiakum Board
of County Commissioners intended to make the crime of dangerous dog at large punishable as a
gross misdemeanor. RCW 16.08.100(1) is the only provision in chapter 16.08 RCW that RCWC
16.08.090(B) could logically reference. And the statute explicitly states that “the owner shall be
guilty of a gross misdemeanor.” RCW 16.08.100(1). The district court did not err when it
concluded Richards was guilty of a gross misdemeanor.
Richards contends that because Thor did not meet the statutory definition of a dangerous
dog, no statutory punishment could apply to her, so she could not be guilty of more than an
infraction under the county code. The county code states that, unless otherwise provided, any
violation of the chapter on potentially dangerous and dangerous dogs is a civil infraction. RCWC
16.08.090(C). But, as explained above, RCWC 16.08.090(B) provides otherwise and incorporates
the statutory punishment for a gross misdemeanor. The fact that Thor is not dangerous under state
law is therefore irrelevant to whether Richards committed a gross misdemeanor under the county
code.
B. Destruction
Richards argues that the district court could not impose a sentence that forced her to choose
between having her dog destroyed and going to jail for 364 days. She contends that while a district
court “has broad discretion to impose sentencing conditions tending to prevent future commission
4
Subsections (2) and (3) of RCW 16.08.100 apply, respectively, to owners of dangerous dogs with
prior convictions under chapter 16.08 RCW and owners of dogs that cause severe injury or death
to human beings. Neither applies here.
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of crimes,” it was unjust to order “the relinquishment of Thor as a condition of” avoiding
imprisonment. Appellant’s Br. at 26-27. And she contends that tying her “personal freedom to the
tormenting choice to kill her and her daughter’s dog is beyond cruel and unusual” under the federal
and state constitutions. Id. at 27. The state responds that the district court had authority to impose
Richards’ sentence under State v. Deskins, 180 Wn.2d 68, 322 P.3d 780 (2014). We conclude that
the sentence imposed was outside the scope of the district court’s discretion.
1. State and county dog destruction schemes
After stating that it prohibits unrestrained dangerous dogs, RCW 16.08.100(1) provides
that the “owner must pay the costs” of confiscation. The statute then describes the animal control
authority’s responsibility to notify the owner “that the dog will be destroyed” if the owner does
not correct “the deficiencies for which the dog was confiscated . . . within twenty days,”
authorizing that destruction only if there is no correction. RCW 16.08.100(1) (emphasis added).
RCWC 16.08.110(A)(1) states that any dangerous dog that is not in compliance with
RCWC 16.08.050’s requirements is “subject to impoundment and confiscation.” “If the dog’s
owner is identified,” the animal control authority has to “promptly serve an impoundment notice”
stating “what the owner must do to redeem the dog,” the deadline for compliance, and “what will
happen to the impounded dog if the owner does not redeem the dog.” RCWC 116.08.110(C)(4).
An owner may redeem any impounded dog after paying applicable fees and providing evidence
that they have corrected the violation. RCWC 116.08.110(D).
The county code allows destruction of a dangerous dog under specific circumstances. It
allows destruction when an owner does not redeem an impounded dog within 96 hours. RCWC
16.08.110(E). And it allows immediate destruction when “a dog is suffering from a serious injury
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No. 56949-3-II
or disease, and destroying the dog is in the interest of public health and safety, or in the interest of
the dog.” RCWC 16.08.110(F) (emphasis added). The code does not authorize destroying a dog in
any other instance.
2. The district court’s discretion
We review sentencing conditions for abuse of discretion. Deskins, 180 Wn.2d at 77. It is
an abuse of discretion for a trial court to exceed its statutory authority. See Cowan v. Cowan, No.
83082-1-I, slip op. at 20 (Wash. Ct. App. Aug. 28, 2023);5 State v. Kerow, 192 Wn. App. 843, 846,
368 P.3d 260 (2016).
A district court may impose a “sentence by suspending all or a portion of the defendant’s
sentence.” RCW 3.66.067. With exceptions that do not apply here, RCW 3.66.068(1) gives a
district court “continuing jurisdiction and authority to suspend the execution of all or any part of
its sentence upon stated terms.” See also State v. Williams, 97 Wn. App. 257, 262, 983 P.2d 687(1999).
District courts “have a great deal of discretion when setting probation conditions for
misdemeanors and are not restricted by the Sentencing Reform Act . . . which applies only to
felonies.” Deskins, 180 Wn.2d at 78. A district court may impose “conditions that bear a reasonable
relation to the defendant’s duty to make restitution or that tend to prevent the future commission
of crimes.” Williams, 97 Wn. App. at 263. For example, in Deskins, the Washington Supreme
Court upheld a probationary condition prohibiting a defendant convicted of animal cruelty from
owning or living with animals. 180 Wn.2d at 79. The court reasoned that “the trial court used its
discretion and found that letting [the defendant] own or live with animals could result in future
5
https://www.courts.wa.gov/opinions/pdf/830821.pdf.
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No. 56949-3-II
crimes.” Id. Although the defendant argued that the animal cruelty statute did not give the trial
court “the authority to prohibit living with animals during the probationary period,” the court
explained that the statute ensured trial courts would prohibit ownership in certain cases but did not
prevent trial courts from prohibiting ownership in others. Id. at 78-79.
While a district court’s sentencing discretion is broad, it is not limitless. As our
commissioner pointed out in her ruling granting discretionary review, Deskins does not directly
address whether a district court can impose a condition on a suspended sentence that contradicts
the requirements of a statute or ordinance. Both RCW 16.08.100(1) and RCWC 16.08.110(F)
require certain events to take place before a dog can be destroyed, including an opportunity to cure
the violation. The district court’s condition on the suspended sentence is untethered from these
limitations that the legislature and county legislative body adopted. In contrast, the condition in
Deskins did not contradict express requirements or prerequisites in the animal cruelty statute.
In other contexts, the Washington Supreme Court has noted that a district court’s authority
in enforcing conditions on a suspended sentence is limited by what the legislature has authorized.
See State v. Granath, 190 Wn.2d 548, 557, 415 P.3d 1179 (2018). And a court “‘ought not to
attempt to do indirectly what it could not do directly.’” Ewing v. City of Seattle, 55 Wash. 229,
236, 104 P. 259 (1909) (quoting New Orleans Waterworks v. New Orleans, 164 U.S. 471, 481, 17
S. Ct. 161, 41 L. Ed. 518 (1896)); see also Pierce County v. State, 159 Wn.2d 16, 48, 148 P.3d
1002 (2006).
It is true that the county code does not specify whether the state or county procedures apply
when a dog owner violates RCWC 16.08.050. RCWC 16.08.090(B) states that such a dog owner
“shall be subject to the punishments prescribed by” chapter 16.08 RCW. (Emphasis added.) But it
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No. 56949-3-II
is unclear whether the provision of RCW 16.08.100(1), authorizing destruction, is a punishment
for the owner, a regulation the animal control authority must follow, or both. And while it would
be logical for the county code provisions about destruction to apply, RCWC 16.08.090(B) does
not specifically reference them as part of punishment to be imposed for a code violation related to
a dangerous dog.
Regardless, neither the statute nor the county code permitted the animal control authority
to destroy Thor without Richards’ permission unless it gave Richards a chance to cure the violation
of RCWC 16.08.050(F). The record does not show that the animal control authority confiscated
Thor, gave Richards notice of the reasons for the confiscation, and then gave Richards 20 days to
correct the deficiencies, as RCW 16.08.100(1) requires. Nor does the record show that Thor was
confiscated and Richards failed to redeem him by paying fees and providing evidence of
compliance with the county code within 96 hours under RCWC 116.08.110(D) and (E). And the
record does not show that Thor was “suffering from a serious injury or disease” and that destroying
Thor immediately was “in the interest of public health and safety,” as RCWC 16.08.110(F)
requires.
While the crime of dangerous dog at large is a gross misdemeanor, under the plain language
of RCW 16.08.100(1) and RCWC 16.08.110, Thor is not subject to destruction as a direct
punishment for Richards’ violation of the ordinance until the express prerequisites have been met.
The district court acted outside the scope of its discretion by imposing a condition for achieving a
suspended sentence that was untethered from these state and county laws. The district court,
therefore, abused its discretion when it imposed Richards’ sentence.
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No. 56949-3-II
Because there is no evidence in the record that the district court would have imposed the
364-day term of confinement without the condition allowing suspension of a sentence, we reverse
and remand for a new sentencing hearing. Given that we remand, we need not reach Richards’
constitutional argument that the punishment was cruel and unusual.
CONCLUSION
We affirm Richards’ conviction of a gross misdemeanor under the ordinance, but we
remand for the district court to clarify that Richards was not convicted of any violation of the
statute. Because the district court imposed a condition on the suspension of Richards’ sentence
that was untethered from statutory and county code requirements, which was an abuse of
discretion, we reverse the sentence and remand for resentencing.
Glasgow, C.J.
We concur:
Maxa, J.
Price, J.
25