                                                                                      May 7 2013


                                               DA 12-0610



                IN THE SUPREME COURT OF THE STATE OF MONTANA


                                             2013 MT 126N




CITY OF HELENA, MONTANA,


         Plaintiff and Appellee,


    v.


CHARLES ELLIOT MAGRAW,


         Defendant and Appellant.




APPEAL FROM:          District Court of the First Judicial District,
                      In and For the County of Lewis and Clark, Cause No. CDC 12-69

                      Honorable Kathy Seeley, Presiding Judge




COUNSEL OF RECORD:


               For Appellant:
                Charles E. Magraw, self-represented; Helena, Montana


         For Appellee:


                Jeffrey M. Hindoien, Todd D. Baker; Office of the City Attorney;

                Helena, Montana




                                                Submitted on Briefs: April 17, 2013


                                                            Decided: May 7, 2013




Filed:



                __________________________________________
                                        Clerk




                                       2
Justice Jim Rice delivered the Opinion of the Court.


¶1      Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this

case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its

case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable

cases published in the Pacific Reporter and Montana Reports.


¶2      Charles Elliott Magraw (Magraw) appeals from the order entered in this matter by the First

Judicial District Court on August 13, 2012, affirming the judgment of the Helena Municipal Court that

found Magraw guilty of two violations of § 5-2-14 of the Helena City Code, which prohibits animals from

running at large. As he did in the District Court, Magraw challenges the application of the ordinance to

his actions and also argues the ordinance is unconstitutionally vague.


¶3      Magraw was cited on May 5, 2011, and July 30, 2011, by the City of Helena’s animal control

officer for owning or harboring “a dog that was running at large not on a leash” in alleged violation of

the ordinance. He filed a motion to dismiss the citations, which was denied, and the two citations were

consolidated for trial. A bench trial was conducted by the Helena Municipal Court on January 27, 2012,

and Magraw was found guilty of both offenses. He appealed to the District Court, which rejected his

arguments and affirmed his convictions.


¶4      On an appeal from municipal court, the district court functions as “an intermediate appellate

court.” City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461; see §§ 3-5-303 and 3-

6-110, MCA. On subsequent appeal to this court, “we review the case as if the appeal originally had

been filed in this Court.” Cantu, ¶ 10 (citation omitted).


¶5       Section 5-2-14 of the Helena City Code provides:


                                                 2
        Animals Running at Large: No animal shall be allowed to run at large
        within the corporate limits of the city. Any person who owns, harbors or
        keeps an animal, or the parent or guardian of any such person under the age
        of eighteen (18) years, shall be strictly liable for any violation of this
        section. All animals not confined within an enclosure or on the owner’s
        property shall be kept on a leash not more than ten feet (10’) long, securely
        restrained, or held so as to prevent the animal from running at large, with
        the following exception: All dogs must be kept under control, either on a
        leash or within sight and under voice control of their owners or other
        competent persons when they are within any “natural park” as defined in
        section 7-12-1 of this code and as designated by the city commission. Dogs
        must be kept on a leash within one hundred (100) yards of any trailhead in
        any natural park.

¶6      Magraw acknowledges that he did not have his dog leashed at the times stated in the citations,

but argues “if the dog is at-heel there is no violation” of the ordinance. Throughout this proceeding,

Magraw has been long on legal argument about the construction and meaning of the ordinance, but

short on development of a factual record. By asserting that his dog was “at-heel,” he apparently

contends that he satisfied the requirements of the ordinance that the animal be “securely restrained” by

being “within sight and under voice control of their owners or other competent persons” or otherwise

held “as to prevent the animal from running at large.” However, even if Magraw’s interpretational

arguments had merit, the problem is the lack of a factual record demonstrating exactly what Magraw

and his dog were doing at the time the citations were issued. As the District Court noted, “[e]ven if

Magraw’s interpretation is correct, there is no evidence that the dog was at heel, securely restrained, or

held. Magraw introduced photographs at trial, all of which simply show a loose dog . . . there was no

testimony about whether the dog did or did not stay.”


¶7      “[L]egal conclusions must emanate from a factual record, which is absent here.” Confederated

Salish and Kootenai Tribes v. Clinch, 2007 MT 63, ¶ 31, 336 Mont. 302, 158 P.3d 377. The power of the

courts is limited to “‘justiciable controversies.’” State v. Benn, 2012 MT 33, ¶ 9, 364 Mont. 153, 274

                                                3
P.3d 47 (citations omitted). “‘[A] ‘controversy,’ in the constitutional sense, is one that is ‘definite and

concrete, touching legal relations of parties having adverse legal interests’; it is ‘a real and substantial

controversy, admitting of specific relief through decree of conclusive character, as distinguished from an

opinion advising what the law would be upon a hypothetical state of facts, or upon an abstract

proposition.’” Benn, ¶ 9 (citations omitted). Even if we were to agree with Magraw’s interpretation of

the ordinance, there would not be an evidentiary basis to reverse his conviction. We have no factual

basis on which to render a legal judgment about proper application of the ordinance.


¶8      Magraw also contends that the ordinance is unconstitutionally vague, noting the differing

interpretations that have been offered.        This ordinance may well lack clarity, but difficulty in

interpretation does not necessarily render an ordinance void for vagueness. Statutes are presumed to

be constitutional, and challengers must satisfy the burden of proving them to be unconstitutional

beyond a reasonable doubt. We conclude that Magraw has not met this burden.


¶9      We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal

Operating Rules, which provides for noncitable memorandum opinions. The issues in this case are ones

controlled by settled law that were correctly interpreted by the Municipal Court and the District Court.


¶10      Affirmed.




                                                          /S/ JIM RICE




We concur:



                                                 4
/S/ MIKE McGRATH

/S/ BETH BAKER

/S/ MICHAEL E WHEAT

/S/ LAURIE McKINNON




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