CITY OF TOLEDO, Appellant, v. Paul TELLINGS, Appellee

Share |
Year Case Filed:  2007 Jurisdiction Level:  Ohio Case File Num:  No. 2006-0690 Defense Attorney:  Sol Zyndorf, Esq. (0002398), 320 North Michigan Street, 2nd Floor, Toledo, Ohio 43624, Telephone: (419) 243-1144, Facsimile: (419) 243-5821, Counsel for Appellee, Paul Tellings. Drafting Attorney:  John T. Madigan, Director of Law (0023614), Adam W. Loukx, General Counsel (0062158), Joseph Howe, Assistant Prosecutor (0069094), City of Toledo Department of Law, One Government Center, Suite 1710, Toledo, Ohio 43604, Telephone: (419) 245-1020, Facsimil

This Reply Brief of Appellant City of Toledo was filed for the Supreme Court case of Toledo v. Tellings (871 N.E.2d 1152 (2007)). The Supreme Court reversed the Court of Appeals decision, finding that the state and the city have a legitimate interest in protecting citizens against unsafe conditions caused by pit bulls.




I. Public Policy Dictates Reversal of the Court of Appeals Decision ... 1

II. Toledo's Ordinance is Entitled to Strong Presumptions and a Constitutionality which have not been overcome ... 3

III. Toledo's Ordinance Bears Irrational Relationship to a Legitimate Legislative Goal ... 5




Brady, et al. v. Safety-Kleen, Corp., (1991) 61 Ohio St 3d 624, 632, 576 NE 2d 722, 728 ... 5

Exxon Corp. v. Governor of Maryland 437 US 117,124 (1978) ... 5

Porter v. Oberlin (1965) 1 Ohio St 2d 143 at 149, 30 O.O. 2d 491, 494, 205 NE 2d 363, 368 ... 2

State ex rel. Dickman v. Defenbaher (1955) 164 Ohio St 142, 57 O.O. 134, 128 NE 2d 59 ... 5

Village of Hoffman Estate v. Flipside, 455 US 489, FN 9 (1982) ... 4

*1 I. Public Policy Dictates Reversal of the Court of Appeals Decision

This case revolves around legitimate efforts by both the state and local legislative bodies to address a problem with vicious dogs generally and with pit bull dogs specifically. Appellant, City of Toledo, is an urban area where persons and pets live in close proximity in the urban environment. The actions or inaction of one citizen can have an immediate detrimental affect on the neighbors of that citizen. While a loose dog in a bucolic rural setting cause some problem, aggressive dogs running wild within the city could pose more of a threat.

The statutes and ordinance that the Appellee and Amici on his behalf have challenged, Ohio Revised Code 955.22 and Toledo Municipal Code 505.14, are, in reality, rather innocuous, common sense approaches to addressing a problem faced in the City of Toledo. Toledo City Council when enacting Ordinance No. 373-99 in 1999, which was codified as Toledo Municipal Code 505.14, recognized certain problems that it hoped to address with the enactment of the ordinance. Council recognized, for instance, that “pit bulls are being raised in Toledo for the purpose of illegal dog fighting” and that “attacks on individuals by vicious dogs in public places are a continuing concern.” See Ordinance No. 373-99 Appendix to Appellant's Merit Brief pp. 63-64. In an effort to curb these recognized problems City Council enacted an ordinance that required the owner of a pit bull or other vicious dogs to take certain common sense steps to be a responsible dog owner. For instance, a person living in the City of Toledo should, with certain exceptions, only own one pit bull. See Toledo Municipal Code Section 505.14(a). Further, an owner of that pit bull would be required to keep the dog on a leash and muzzled when the dog is in public. The Toledo Municipal Code also adopts common sensical regulations found within the Ohio Revised Code at Sections 955.11 and 955.22 would require the owner of a pit bull to properly confine his/her dog in an effort to prevent its running wild in the neighborhood. *2 Finally, Toledo Municipal Code adopted portions of the state law that would require owners of a pit bull to maintain liability insurance. Undoubtedly, it is not too much to ask that a person choosing to own a pit bull make an effort to be financially responsible for any damages that dog may cause.

Appellee and his supporting amici suggest that evidence was introduced in the trial court which would indisputably prove that the purposes behind Toledo Municipal Code Section 505.14 are no longer valid. Appellee is, mistaken.[FN1] In fact, Appellee's own Brief, at p. 8, acknowledges that pit bulls are used in illegal dog fighting, one of the very purposes behind City Council's enactment of the ordinance.

FN1. Appellee has filed two Merit Briefs in this case. Because both Briefs are similar Appellant, unless otherwise noted, will be referring to the Brief filed by the Appellee, pro se, as it was the later of the Briefs filed.

This court has wisely held “[u]less there is a clear and palpable abuse of power, a court will not substitute its judgment for legislative discretion. Local authorities are presumed to be familiar with local conditions and to know the needs of the community.” Porter v. Oberlin (1965) 1 Ohio St 2d 143 at 149, 30 O.O. 2d 491,494, 205 NE 2d 363, 368. This court should, follow this sound precedent and defer to the legislative finding of the Toledo City Council.

Further, this court should reverse lower courts that usurp proper legislative authority, Two Judges of the Sixth Appellate District, in this case, simply substituted their own judgment for that of the local and state legislature on this issue. Absent a constitutional flaw, and there is none in this case, legislation should enjoy great deference from a reviewing court. If there is a change in circumstance that would justify amending an otherwise constitutional ordinance or statute, our democratic system allowed petition to legislatures to make changes to the law.[FN2]

FN2. Contrary to Appellee's argument, however, there has been no proven change of condition that would justify overruling the statutes and ordinance challenged herein.

*3 Just as importantly, this court should be reluctant to affirm the lower court's precedent in this case because such precedent could have far-reaching, negative consequences in many areas of criminal law. Any time a local government or the state legislature enacted a statute or ordinance that prescribed certain conduct, that ordinance or statute would be at the mercy of any defendant that has the wherewithal to bring in expert to testify that the prohibited conduct was not inherently wrong or dangerous. For instance, how could a ban on “Saturday Night Specials” survive when an expert could easily be found to say they are no more dangerous than any other handgun. How could a prohibition on the ownership of a flamethrower survive when statistics could undoubtedly be introduced to show that flamethrowers are used in relatively few crimes? Could marijuana continue to be prescribed when experts can be found to suggest that it is no more dangerous than the legal alcoholic beverages readily available in the community? Precedent like that created in the Court of Appeals in this matter would severely undermine the police powers of both the state and local governments in Ohio.

II. Toledo's Ordinance is Entitled to Strong Presumptions and a Constitutionality which have not been overcome.

Appellee and supporting Amici have incorrectly argued that they presented evidence beyond a reasonable doubt to suggest that Toledo's ordinance and state statutes in question in this case bear no real and substantial relationship to their purported goals. In truth, however, it was the Appellee which had the burden of proving the ordinance unconstitutional beyond a reasonable doubt. Appellee failed to do so. Appellee is correct in stating that many persons testified on his behalf. Further, both Appellee and Amici attempt to discredit witnesses that testify for the Appellant. However, no where, for instance, did Appellee rebut a chief concern of *4 Toledo City Council that pit bulls are often used for dog fighting. Nowhere did Appellee bring in evidence that would contradict testimony that pit bulls were the number one reason for the Toledo Police to have to discharge their weapons in the line of duty. (Supplement p. 93; Skeldon p. 90) Nowhere did Appellee contradict testimony that safety forces encounter these animals during execution of warrants on drug houses. (Supplement p. 119; Skeldon p. 116)

Appellee has not presented any evidence to suggest that all or even a majority of pit bull owners are, in fact “responsible.”[FN3] To the contrary, Appellee admits that pit bulls are often employed in the illegal “sport” of dog fighting. Appellee br. p. 8.

FN3. Of course one would think that responsible pit bull owners would not be opposed to confining their animal or maintaining proper insurance to address the contingency of an injury caused by it.

Rather, Appellee claims to have scored a great victory in court because it was proven, he thinks, that pit bulls are not inherently dangerous. This of course is not really the issue in the case. Undoubtedly, just as many responsible persons may safely own a machine gun, some persons may safely raise a pit bull. However, the mere fact that some innocent person may be affected by a statutory proscription does not render the law improper. Village of Hoffman Estate v. Flipside, 455 US 489, FN 9 (1982).

While this court should be disinclined to reweigh the evidence presented at the Municipal Court, it is apparent that Appellee did not present evidence to disprove, beyond a reasonable doubt, the concerns addressed by City Council and the State Legislature when enacting the statutes and ordinance in question.[FN4] “Regulation of items that have some lawful as well as unlawful uses is not an irrational means of discouraging [unlawful conduct].” Id at FN 9.

FN4. Contrary to Appellee's suggestion that breed-specific legislation was based on now discredited studies, even in cursory review of current literature suggests otherwise. See for instance, “Pit Bulls at Top of Fatal Attacks” cgi?f=/c/a/2005/06/23/mngroddh561.dts, “Dog Bite Statistics” http://

*5 This court has persistently held that legislation should only be invalidated with great caution and in the clearest of cases. See, for instance State ex rel. Dickman v. Defenbaher (1955) 164 Ohio St 142, 57 O.O. 134, 128 NE 2d 59. This is not one of those cases.

III. Toledo's Ordinance Bears Irrational Relationship to a Legitimate Legislative Goal.

The safety and welfare of the citizens and safety forces of the City of Toledo is a legitimate area for local lawmakers to address with legislation. In this case, the City of Toledo properly sought to exercise its police powers to legislate against the threat of illegal dog fighting and the increased threat of dog bites in public areas. To that end and in exercise of its police powers, the City of Toledo enacted the present version of Toledo Municipal Code 505.14. This Code Section bears a rationale relationship with its intended purpose and should be upheld.

This court has long held that there is a “... universally recognized principle the court has nothing to do with the policy or wisdom of a statute. That is the exclusive concern of the legislative branch of the government. When the validity of a statute is challenged on constitutional grounds, the sole function of the court is to determine whether it transcends the limits of legislative power.” Brady, et al. v. Safety-Kleen, Corp., (1991) 61 Ohio St 3d 624, 632, 576 NE 2d 722, 728.[FN5]

FN5. The United States Supreme Court has stated the same in regards to federal substantive due process challenges: “The evidence presented by the refiners may cast some doubt on the wisdom of the statute, but it is, by now, absolutely clear that the Due Process Clause does not empower the judiciary “to sit as a ‘superlegislature to weigh the wisdom of legislation’...” Exxon Corp. v. Governor of Maryland 437 US 117, 124 (1978).

The Court of Appeals properly recognized that protection of people and property from injuries by dogs is a clearly legitimate government interest. However, the Court of Appeals found no rational relationship between the ordinance and the statute because according to the *6 Court of Appeals logic the problems being addressed, i.e., the danger of aggressive animals in crowded urban setting are not addressed by the statutes and ordinances in question. Rather, according to the Court of Appeals the problems being addressed “are attributable to the owners, not because the pit bulls are inherently dangerous. See Appendix p. 26. Simply put, the Court of Appeals was wrong to make this observation. The law applies to owners, rather than dogs. It is the irresponsible owner that the law seeks to regulate. Lost in the shuffle of court hearings is the real issue in this case.

The real issue in this case is not, as the Court of Appeals and Appellee like to think, whether pit bulls are inherently dangerous. The real issue in this case is whether pit bulls in the hands of irresponsible owners in an urban setting pose a danger to other residents of the City and whether or not they are often used in illegal dog fighting. These issues were not addressed by Appellee in a satisfactory manner to justify reversal. Further, the Court of Appeals logic in claiming the law should be struck down because the dogs themselves are not at fault so much as irresponsible owners flies in the face of common sense.

Under the logic employed by the Court of Appeals, no weapon could be outlawed because the weapon itself in its inert form is rather harmless. There is no inherent danger, for instance, in a sheathed knife or an unloaded cannon. Under the Court of Appeals logic an attempt by a legislature to regulate the concealment or ownership of certain weapons would fall flat unless the weapon itself was inherently dangerous rather than being dangerous in the hands of an irresponsible user.

The activism of the Court of Appeals is hard to conceal. This activism, if it is affirmed, will be paid for by the victims of those irresponsible dog owners in an urban setting that allow *7 their pit bull to remain a threat to neighbors and safety forces in Toledo. Further, the City's laudatory efforts to combat the cruel “sport” of dog fighting will be for naught.


For the foregoing reasons and for those more fully addressed in its Merit Brief, Appellant urges this Court to reverse.

CITY OF TOLEDO, Appellant, v. Paul TELLINGS, Appellee.

2006 WL 3912767 (Ohio)


Share |