Colorado Dog Fanciers, Inc. v. City & County of Denver Ex Rel. City Council

Justice MULLARKEY

concurring in part and dissenting in part:

I respectfully dissent from that portion of Part III A of the majority opinion which holds that the city must bear the burden of proof in an administrative proceeding initiated by the dog owner under 8-55(f) to dispute the city’s classification of an impounded dog as a pit bull. I read section 8-55(f) as placing the burden of proof (denoted as the “risk of nonpersuasion”) on the dog owner in an administrative proceeding. In my view, there is no basis for striking this portion of the ordinance or construing it contrary to its plain meaning. The provision for the administrative hearing should therefore be upheld and the trial court reversed on this point.

In administrative proceedings the general rule is that the proponent of an order has the burden of proof. See, e.g., section 24-4-105(7), 10A C.R.S. (1988) (State Administrative Procedure Act); 5 U.S.C. § 556(d) (federal Administrative Procedure Act); Koch, Administrative Law and Practice, § 6.42 (1985). Under 8-55(f) of the ordinance, the aggrieved dog owner who petitions for a hearing is the moving party and in effect the proponent of an order. Renteria v. State Dept. of Personnel, 811 P.2d 797, 803 (Colo.1991). This means that the dog owners, who are “capable of determining the breed or phenotype of their dog” (maj. op. at 652), have the burden of going forward with those facts. *655Koch, id. § 6.42 (1990 Supp.). Thus, the scheme of the ordinance follows the allocation of burdens common to administrative proceedings.

Even if the city rather than the dog owner is deemed to be the proponent of the order, thus making the allocation of the risk of nonpersuasion inconsistent with the general rule, the city nonetheless has the power to make exceptions to the general rule and to shift the burden of proof, or going forward, just as the state legislature has a similar power. Under section 24-4-107, which places the burden on the proponent of the order in state proceedings, the legislature has the power to provide otherwise by statute, that is, to shift the burden of proof to the private respondent. The Congress of course has similar power under the federal Administrative Procedure Act (APA), 5 U.S.C. § 556(d). See Koch, id. § 6.42 (1985) (“No matter what burden may be applied by analogy to the common law and by the APA, Congress can place the burden anywhere it wishes.”). Steadman v. S.E.C., 450 U.S. 91, 95 n. 9, 101 S.Ct. 999, 1004 n. 9, 67 L.Ed.2d 69 (1981).

A home rule city has the same authority. In City and County of Denver v. State, 788 P.2d 764, 767 (Colo.1990), we held that while the state legislature “exercise[s] supreme authority over matters of statewide concern, a home rule city is not inferior to the General Assembly with respect to local and municipal matters.” Because there is no question that the regulation and/or prohibition of pit bulls in the city by the city is a matter of purely local concern, the city by proper ordinance has the power to shift the burden of proof or the risk of nonpersuasion in an 8-55(f) hearing. See Sant v. Stephens, 753 P.2d 752, 756 (Colo.1988) (“In matters of purely local and municipal concern, an ordinance adopted by a home rule city supersedes a conflicting state statute.”).1

Finally, there also is no constitutional violation. Any procedural due process requirements for the administrative enforcement of the ordinance have been more than met by the 8-55(f) hearing itself, which is available upon petition by the dog owner who disputes the city’s classification. After impoundment and evaluation, the city notifies the dog owner of this fact and the availability of the 8-55(f) hearing. To be sure, the impoundment of a dog by the city, coupled with an evaluation that the impounded dog is in fact a pit bull under the ordinance, does qualify as a quasi-judicial proceeding. A degree of procedural due process therefore is required. See Cherry Hills Resort v. Cherry Hills Village, 757 P.2d 622, 626 (Colo.1988). In this case, however, these requirements need go no further than timely notice and a hearing, which are exactly what 8-55(f) provides for the aggrieved dog owner.2

Procedural due process does not mandate a specific allocation of the burden of proof *656or the risk of nonpersuasion, especially given the power of legislative bodies to allocate the burden in administrative hearings. Here, with an 8-55(f) hearing, the dog owner can be heard and may present his case. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (“the fundamental requirement of due process is the opportunity to be heard”). Allocating the risk of nonpersuasion to the dog owner at an 8-55(f) hearing does not deny constitutional due process.3

Thus, there is no authority, either statutory or constitutional, to support the majority’s decision to uphold the trial court’s reallocation of the burden of proof from the dog owner to the city. For that reason, I dissent from part III A.

ROVIRA, C.J., and LOHR, J., join in this concurrence and dissent.

. Even if 8 — 55(f) creates a presumption such that CRE 301 is instructive (maj. op. at 648), that rule states that a statute may provide otherwise. In any event, under CRE 101 the scope of the rules of evidence extends to state courts, not administrative proceedings by a municipality. People v. Milton, 732 P.2d 1199 (Colo.1987), is inapposite since it was a civil action in a state court brought under the State Abatement of Public Nuisance Statute, thus implicating the burden of proof allocation provided in section 13-25-127, 6A C.R.S. (1987). As to that abatement statute, section 16-13-302, 8A C.R.S. (1991 Supp.), provides that it shall not be construed "to limit or preempt the powers of any ... political subdivision to abate or control nuisances." Denver, a political subdivision, by the 8.55(f) hearing, is abating and controlling the pit bull nuisance according to its police powers.

. Other jurisdictions have not even required an administrative hearing, much less one where the city has the burden of proof. See Hearn v. City of Overland Park, 244 Kan. 638, 772 P.2d 758, 762-63 (1990), upholding a pit bull ordinance, where there was no indication that an administrative hearing was even provided by the ordinance. Rather, the identification of any dog with predominant pit bull characteristics was "a matter of judgment” by the local police department. In Singer v. City of Cincinnati, 57 Ohio App.3d 1, 2, 566 N.E.2d 190, 191 (1990), the dog owners urged "that the ordinance [was] unreasonable because it violate[d] procedural due process guarantees by denying the owners a hearing in connection with what amounts to the deprivation of their property right[s]” in dog ownership. The court was not persuaded and not even a post-impoundment hearing was mandated. In Garcia v. Village of Tijeras, 108 N.M. 116, 122, 767 P.2d 355, 361 (App.1988), upholding a ban on pit bulls, the ordinance at issue made no provision for an administrative hearing. Rather, in disputed cases, the ordinance *656provided that a “‘determination is made by a court of competent jurisdiction that the animal is'” a pit bull.

. See Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) (procedural requisites at a hearing may vary, depending upon the "interests involved and the nature of the subsequent proceedings"). As to the interests involved in the case now before us, in Thiele v. City and County of Denver, 135 Colo. 442, 312 P.2d 786, 791 (1957), this court held that "in determining what constitutes due process ... we are bound to consider the nature of the property, the necessity for its sacrifice, and the extent to which the requirements and regulations provided in the ordinance may be regarded as within the police power.” In Thiele, we found that it was not necessary "that a hearing be had before dogs are either taken or disposed of pursuant to the provisions of this ordinance.” Id. As for subsequent proceedings, section 8 — 55(f) provides that the determination at the hearing that the dog in question is a pit bull within the scope of the ordinance shall be considered a final order and "subject to [judicial] review under Rule 106(a)(4) of the state rules of civil procedure.”