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NOT DESIGNATED FOR PUBLICATION

No. 120,908

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MICHAEL ERNATT,

Appellee/Cross-appellant,

v.

CITY OF WICHITA,

Appellant/Cross-appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed November 13,

2020. Affirmed.

Jan Jarman, assistant city attorney, for appellant/cross-appellee.

Amy S. Lemley, of Foulston Siefkin LLP, of Wichita, for appellee/cross-appellant.

Before BRUNS, P.J., WARNER, J., and BURGESS, S.J.

PER CURIAM: After Michael Ernatt's dog allegedly bit his next-door neighbor, an 

officer with the Animal Control Section of the City of Wichita Police Department 

deemed the dog "potentially dangerous" under Wichita City Code of Ordinances Sec.

6.04.045(a) (2018). Ernatt appealed to an administrative hearing officer, who also 

concluded that Ernatt's dog was potentially dangerous. There was no transcript taken of 

this hearing. Ernatt then appealed to the district court under K.S.A. 60-2101(d). Besides

challenging the hearing officer's potentially dangerous dog finding, Ernatt raised several 

constitutional challenges to Wichita's dangerous dog ordinance scheme. The district court 

did not rule on Ernatt's constitutional arguments but reversed, finding the lack of a 

transcript prevented the court from meaningfully reviewing the potentially dangerous dog 
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ruling. The City of Wichita (the City) appeals, arguing that the district court 

misunderstood its review powers under K.S.A. 60-2101(d). Ernatt cross-appeals, raising 

some of the constitutional challenges to the ordinance scheme he raised below. We affirm

the district court's ruling.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2018, Ernatt's next-door neighbor was allegedly bitten by Ernatt's dog 

while mowing her lawn. The neighbor's mother emailed a complaint to the Animal 

Control Section of the Wichita Police Department. Ernatt received a citation from animal 

control informing him that his dog had allegedly bitten another human and requesting 

him to bring his dog to the Wichita Animal Shelter to be temporarily quarantined. Ernatt 

complied with the citation the following morning, and his dog was impounded. He then 

received a letter from the police department informing him that based on the incident 

with his neighbor, an animal control officer deemed his dog "potentially dangerous" 

under Wichita City Code Sec. 6.04.045(a). The letter set out several conditions that 

Ernatt had to comply with before his dog would be returned to him. Ernatt complied, and 

his dog was returned to him. The letter also informed Ernatt that he could appeal the 

officer's determination to the municipal court and that failure to comply with the 

conditions of the officer's finding would result in criminal charges being filed against 

him. 

Ernatt appealed to the municipal court. The municipal court judge, acting as an 

administrative hearing officer, held an administrative hearing to determine whether 

"substantial competent evidence" supported animal control's finding that Ernatt's dog was 

potentially dangerous. There was no transcript taken of this hearing; the only record of 

what took place at the hearing is the brief summary in the municipal court's ruling. 
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According to the written ruling, the alleged victim testified that Ernatt's dog had 

dug underneath Ernatt's fence and bit her toe causing her toe to bleed while she was 

mowing her lawn. An officer with animal control stated that he responded to the scene 

several days after the incident and interviewed the victim and her mother. He did not 

observe an injury on the victim's toe but did see gaps underneath Ernatt's fence. Two 

witnesses, testifying in Ernatt's defense, stated they had observed the dog in training and 

social settings and said the dog had never shown aggressive behavior. Ernatt said while 

his dog was not aggressive to humans, the dog had dug underneath his fence on previous 

occasions. Photos of what were alleged to be a dog bite and Ernatt's fence were admitted 

into evidence. Beyond brief summary descriptions, the written ruling did not include 

detail regarding the testimony or evidence presented or record any objections made by 

either party.

The hearing officer weighed the factors under Wichita City Code Sec. 6.04.045(a)

and concluded that there was "sufficient evidence to deem" Ernatt's dog potentially 

dangerous. The hearing officer's written ruling informed Ernatt that he could appeal the 

determination to the district court. 

Ernatt appealed to the Sedgwick County District Court pursuant to Wichita City 

Code Sec. 6.04.210(d) and K.S.A. 60-2101(d). Ernatt challenged the hearing officer's 

finding that his dog was potentially dangerous. He raised several constitutional 

arguments, including claims that his procedural due process rights were violated and that 

Wichita's dangerous dog ordinance scheme was unconstitutionally vague and overbroad. 

He submitted the hearing officer's written ruling to the district court as well as the photos

admitted into evidence at the administrative hearing. 

Both parties filed motions in the district court disputing how the lack of transcript 

impacted the district court's standard of review. Ernatt claimed that the lack of transcript 

required the district court to hear all his arguments, constitutional and otherwise, through 
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a de novo trial. The City argued that once the district court resolved Ernatt's 

constitutional arguments, his remaining claim challenging the hearing officer's potentially 

dangerous dog finding was subject to the Wichita Code's and K.S.A. 60-2101(d)'s limited 

review standard. According to the City, the lack of transcript did not impede the district 

court's review of the hearing officer's finding because it had the authority to conduct a 

hearing where the parties could recreate the evidence presented below. 

In January 2019, the district court heard arguments from both parties on the merits 

of Ernatt's constitutional claims as well as the district court's appropriate standard of 

review. At the hearing, the district court expressed its understanding of its limited review 

powers, noting: 

"[I]n this circumstance the initial tribunal isn't required to make a record, and there is no 

way for me at this point to determine, as the ordinance requires, whether the municipal 

judge's decision is supported by substantial evidence and that the administrative order 

was neither arbitrary nor capricious if there's no administrative record. It seems to me 

very clear from this ordinance that I'm supposed to be sitting as a court of error and 

review. I'm not—this is—it's clear to me that this is set up that it's not a trial de novo." 

In response, the City reiterated that the district court could hold a hearing on the nature of 

the evidence presented below or review the hearing officer's findings solely from his 

written ruling. The district judge replied that if he heard additional evidence, he would 

not be following the procedure outlined in the Wichita Code and would be "doing the 

whole trial." 

After the hearing, the district court took the parties' arguments under advisement. 

Later that month, the district court called the parties into chambers to informally discuss 

the case and issued a minute order reversing the hearing officer's potentially dangerous 

dog finding. The district court's order stated: "The Court finds that review of the City's 

determination is not possible because of the lack of an administrative record. 
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Accordingly, Judgment is for [Ernatt]. Parties to confer regard[ing] costs to be recovered 

by [Ernatt]—any dispute as to costs court reserves jurisdiction." The district court later 

ordered the City to pay some of Ernatt's court costs. 

In February 2019, the City appealed the district court's minute order reversing the 

hearing officer. Ernatt then cross-appealed, raising some of the same constitutional 

arguments he raised below. 

ANALYSIS

I. The district court did not err when it reversed the administrative hearing officer's 

potentially dangerous dog finding based on a lack of transcript.

On appeal, the City argues that the district court misunderstood its review powers 

under K.S.A. 60-2101(d) when it ruled in Ernatt's favor based on the lack of an 

administrative hearing transcript. 

To resolve the City's argument, we must determine whether the district court 

properly interpreted and applied K.S.A. 60-2101(d). The interpretation of a statute is a 

question of law over which this court has unlimited review. In re Tax Appeal of BHCMC, 

307 Kan. 154, 161, 408 P.3d 103 (2017). To the extent that the City's argument also 

requires interpretation of the Wichita City Code, this court's review is also unlimited. 

Robinson v. City of Wichita Employees' Retirement Bd. of Trustees, 291 Kan. 266, 272, 

241 P.3d 15 (2010) (interpretation of municipal ordinances involves same rules as 

interpretation of statutes). 

Wichita City Code Sec. 6.04.210 sets out the appeal procedure from an animal 

control officer's determination that a dog is dangerous or potentially dangerous. The dog 

owner may appeal the control officer's determination to a municipal court, which acts as
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an administrative hearing officer. Wichita City Code Sec. 6.04.210(b). On appeal, the 

hearing officer is tasked with determining whether substantial competent evidence 

supports a finding that the dog is dangerous or potentially dangerous based on the factors 

listed in Wichita City Code Sec. 6.04.045(a). Wichita City Code Sec. 6.04.210(b). The 

hearing officer may hear testimony from "the owner of the dog, animal trainers who have 

directly and personally evaluated the dog, Animal Services Officers or staff of Animal 

Services, victims of any bite or attack, witnesses to the dog's behavior, neighbors or other 

affected persons, and veterinarians concerning the vicious propensity of the dog." 

Wichita City Code Sec. 6.04.210(b). 

If the hearing officer finds the dog dangerous or potentially dangerous, the dog 

owner may appeal to a Sedgwick County District Court. Wichita City Code Sec.

6.04.210(d). Wichita City Code Sec. 6.04.210(d) provides: "The District Court will 

review the case to determine if the [hearing officer's] decision was supported by 

substantial evidence and that the administrative order was neither arbitrary nor capricious 

in accordance with K.S.A. 60-2101." 

Kansas district courts only have such jurisdiction as the Legislature provides. Kan. 

Const. art. 3, § 6; see In re Marriage of Crane, 36 Kan. App. 2d 677, 681, 143 P.3d 87 

(2006). Wichita City Code Sec. 6.04.210(d) directs a district court to review the hearing 

officer's finding to determine whether it "was supported by substantial evidence and . . . 

was neither arbitrary nor capricious in accordance with K.S.A. 60-2101." K.S.A. 60-

2101(d) authorizes district courts to review appeals from orders or judgments made by a 

political subdivision—here, the City of Wichita—exercising judicial or quasi-judicial 

functions. See Stueckemann v. City of Basehor, 301 Kan. 718, 747, 348 P.3d 526 (2015).

The Kansas Supreme Court has described the parameters of a district court's 

review of a political subdivision's judgment or order under K.S.A. 60-2101(d): 
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"When an appeal is taken to the district court under K.S.A. 60-2101(d), the

district court may not substitute its judgment for that of the political or taxing subdivision

or agency, and the court's scope of review is limited to determining whether the

challenged order was within the subdivision or agency's scope of authority; was

substantially supported by the evidence; or was fraudulent, arbitrary, or capricious."

Denning v. Johnson County Sheriff's Civil Service Bd., 299 Kan. 1070, 1075, 329 P.3d 

440 (2014).

A district court's review under K.S.A. 60-2101(d) is restricted to this three-part 

standard and is not de novo. Butler v. U.S.D. No. 440, 244 Kan. 458, 463, 769 P.2d 651 

(1989); Denning v. Johnson County Sheriff's Civil Service Bd., 46 Kan. App. 2d 688, 703, 

266 P.3d 557 (2011), aff'd 299 Kan. 1070, 329 P.3d 440 (2014). This limited standard of 

review was first explained in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 

450, 436 P.2d 828 (1968), and now governs appeals arising under K.S.A. 60-2101(d). See 

In re Residency Application of Bybee, 236 Kan. 443, 444, 691 P.2d 37 (1984). And these 

review powers are consistent with Wichita City Code Sec. 6.04.210(d), which limits the 

district court's review to whether the initial finding was supported by substantial evidence 

and whether the municipal court's order was arbitrary or capricious. The aggrieved party 

has the burden to show under this standard that the political subdivision's decision should 

be reversed or declared void. See Stueckemann, 301 Kan. at 750. 

Parties have a right to appeal a district court's final decision to this court, and this 

court can review any ruling or order from the start of the proceeding. See K.S.A. 60-

2101(a); K.S.A. 2019 Supp. 60-2102(a). Generally, this court's review on appeal is the 

same as the district court's; in other words, this court reviews the political subdivision's 

decision as though the appeal had been directly made to this court. Denning, 299 Kan. at

1075. 

In this case, the City is not claiming the district court's decision in Ernatt's favor 

was wrong per se. The City's argument on appeal raises the narrow issue of whether the 
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district court misunderstood its review powers under K.S.A. 60-2101(d) when it held that

it had no option but to reverse the hearing officer's determination based the lack of

transcript from the administrative hearing. 

Considering the myriad cases entering the court system, it would seem that a case 

of this magnitude could be readily resolved without extensive complications. This is not 

the situation we find ourselves in. The extensive arguments, including constitutional 

challenges, arising in this case are due in large part to the City ordinances that complicate 

nearly every facet of this case starting with the initial investigation and culminating in 

this appeal. 

While the investigation into the alleged dog bite is not the focus of this appeal, the 

ordinance authorizing the investigation and the process utilized serves as an indicator of 

what followed. 

The City ordinance allows a police officer acting as an Animal Services agent to 

make an ex parte determination that a dog is dangerous or potentially dangerous based on 

the "facts available." If such a finding is made, the officer has wide discretion to order the 

dog's owner to take such steps as the officer deems necessary for public safety in addition 

to certain mandatory orders. The ultimate action authorized by the ordinances is the 

euthanization of the dog.

In this case, the investigation consisted of speaking to the neighbor and the 

neighbor's mother and observing several gaps between the bottom of the fence and the 

ground. However, the particular gap the dog allegedly came through was never 

determined. The officer never spoke with the dog's owner, did not observe any injury 

from the alleged bite, made no effort to identify the dog that allegedly bit the neighbor 

from the several dogs in the yard, and made no effort to determine if any of the dogs in 

the yard fit through any of the gaps in the fence. When the dog owner asked for 
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information from the officer, it was refused although the requested information was 

eventually used at a hearing. Clearly the determination of a potentially dangerous dog 

made by the officer was made on less than all the "facts available." From this point 

forward, Ernatt faced the challenge of reversing the determination made by the officer at 

every step of the proceedings with the ordinances in question making it difficult to meet 

that challenge.

The next sticking point arises from the appeal of the potentially dangerous dog 

determination to the municipal court. The municipal judge, acting as a hearing officer, is 

not empowered to conduct a de novo proceeding. Rather, the Wichita Code requires that 

the municipal court apply a substantial competent evidence standard to the facts 

determined by the investigating officer. See Wichita City Code Sec. 6.04.210(b).

At the hearing in the municipal court, Ernatt attempted to raise affirmative 

defenses and constitutional challenges to the validity of the ordinances. The City argued 

the ordinances did not allow affirmative defenses, and there is no record of the court's 

ruling on these matters. There were objections made to some of the witnesses Ernatt 

offered who were not allowed to testify. Again, there is no record of the court's rulings.

After the court sustained the finding of a potentially dangerous dog, Ernatt appealed to 

the district court.

It is quite clear the district court wrestled with what steps the City ordinances 

required the district court to take, what it was permitted to take, or otherwise what 

options were available to the district court. The issues facing the district court were 

exacerbated by the lack of any meaningful record. There was no transcript from the 

municipal court, but the district court was prohibited from proceeding de novo making it 

impossible for the district court to fill in the sparse record before it. 
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The City argues that K.S.A. 60-2101(d) allows the district court to hear evidence. 

But the evidence the district court is permitted to hear is quite limited. One of the few

Kansas appellate court decisions discussing K.S.A. 60-2101(d)'s allowance for additional 

evidence is Davenport Pasture, LP v. Board of Morris County Comm'rs, 31 Kan. App. 2d 

217, 62 P.3d 699 (2003). There, this court found that the district court had exceeded the 

scope of its authority under K.S.A. 60-2101(d) by receiving evidence and by making an 

independent judgment on the merits of issues not addressed by a board of county 

commissioners. 31 Kan. App. 2d at 225. But the Davenport court recognized that K.S.A.

60-2101(d) allows a district court to hear additional evidence relevant to its three-part

standard of review:

"Although K.S.A. 60-2101(d) provides a district court with the ability to hear

additional evidence, the Kansas Supreme Court has held that this review is not de novo.

Rather, it is limited to the three issues listed above: whether the Board's decision was

within the scope of its authority, whether it was supported by substantial competent

evidence, and whether it was fraudulent, arbitrary, or capricious." 31 Kan. App. 2d at 

225.

In effect, K.S.A. 60-2101(d) gives a district court discretion to hold an evidentiary

hearing where the parties can recreate the evidence presented before the political

subdivision. But a district court's authority to receive and consider such evidence must

not be employed to broaden its limited scope of review. The evidence must be relevant to

whether the political subdivision's decision was within the scope of its authority, was

supported by substantial competent evidence, or was arbitrary or capricious. In doing this

review, a district court is not substituting its judgment for that of the political subdivision.

The hearing before the district court is not the equivalent of the hearing before the

political subdivision. Without a trial de novo, the district court is not in a position to

weigh the evidence and exercise its independent judgement. And without a record of the

proceeding appealed, the district court cannot determine whether substantial evidence

supported the hearing officer's findings.
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The City argues that the district court had a sufficient record for review based on

the ruling of the municipal court. It also argues that the district court could have asked the

parties to come to a stipulation as to the pertinent facts. The City further argues that the

district court could have remanded the case to the municipal court based on caselaw

while the statute says that the district court can only reverse, vacate, or modify the City's

determination. As this discussion demonstrates, the options available to the district court

in reviewing a determination made by a municipal court in such a case as this are

muddled at best. While the City claims that the district court had options available to it,

the district court is not required to take any of the steps suggested by the City to improve

the quality of the record submitted by the parties.

From the inception of the case with the investigation all the way through the

appeal to the district court, there is a lack of clarity and structure in the ordinances that

seemingly make it difficult for a dog owner to challenge an initial finding made on

meager evidence. The process established by the ordinances does not create or permit the

creation of a record of any substance with which a dog owner can challenge the initial

potentially dangerous dog determination or which the district court can meaningfully

review. Without a better record, the district court's hands in the present case were

essentially tied. It was up to the discretion of district court to determine whether the

record was sufficient to support the officer's and municipal judge's findings. The court

concluded it was not, and there is nothing to show that the district court abused that

discretion. We affirm the district court.

II. This court need not address whether Wichita's dangerous dog ordinance scheme is 

unconstitutionally vague and overbroad. 

In his cross-appeal, Ernatt invites this court to address the merits of some the

facial constitutional arguments he raised before the district court. He claims Wichita's
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dangerous dog ordinance scheme is unconstitutionally vague and overbroad. The district 

court ruled in Ernatt's favor without addressing the merits of these issues. Citing K.S.A. 

2019 Supp. 60-2103(h), the City reasons that because Ernatt's constitutional arguments 

are not predicated on an adverse ruling, they are the improper subject of a cross-appeal. 

K.S.A. 2019 Supp. 60-2103(h) limits cross-appeals to "rulings and decisions of which 

such appellee complains." Ordinarily, parties cannot cross-appeal from judgments unless 

they have been aggrieved by them. See Morgan v. State, No. 109,099, 2014 WL 

5609935, at *3 (Kan. App. 2014) (unpublished opinion) (dismissing State's cross-appeal 

challenging district court's reasoning but not its result). This general rule is just as 

applicable to parties raising constitutional issues as it is in others. See In re Interest of

Waterman, 212 Kan. 826, 834, 512 P.2d 466 (1973). Without an adverse ruling, we 

decline to address Ernatt's constitutional arguments.

Affirmed.