1 NOT DESIGNATED FOR PUBLICATION

No. 120,908

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

M ICHAEL E RNATT
, Appellee/Cross

- appellant

,

v.

C ITY OF W ICHITA
, Appellant/Cross

- appellee

.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; J EFFREY E. G OERING , judge. Opinion filed Novem ber 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

.

B efore B RUNS
, P.J., W ARNER
, J., and B URGESS
, S.J.

P ER C URIAM : After Michael Ernatt ' s dog allegedly bit his next

- door neighbor, an

officer with the A nimal C ontrol S ection of the C ity of Wichita P olice D epartment 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 a lso

concluded that Ernatt ' s dog was potentially dangerous. There was no transcript ta ken 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 Wichit a ' 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 p otentially dangerous dog2

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

.

F ACTUAL AND P ROCEDURAL B ACKGROUND

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 A nimal

C ontrol S ection of the Wichita P olice D epartment

. 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 quarant ined

. 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 an imal 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 als o 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.3

According to the written ruling, t he alleged victim testified that Erna tt ' 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 mothe r

. H e did not
observe an injury on the victim ' s toe but did see gaps underneath Ernatt ' s fence

. T wo
witnesses, t estifying 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

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

into evidence

. Beyond brief summary desc riptions, 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 D istrict C ourt pursuant to Wichita City
Code Sec. 6.04.210(d) and K.S.A. 60

- 2101(d)

. Ernatt cha llenged the hearing officer ' s finding that his dog was potentially dangerous

. He raised several constitutional

arguments, including claim s that his procedural due process righ ts were violated and th at

Wichita ' s dangerous dog ordinance scheme wa s unconstitutionally vague and overbroad

. He submitted the hearing officer ' s written ruling to the district court as well as the photo s 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 distric t court to hear all his arguments, constitutional and otherwise, through4

a de novo trial

. T he City argued that once the district court resolved Ernatt ' s constitutional arguments, his remaining claim challenging the hearing officer ' s potentially
dangerous d og 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 o f

review

. At the hearing, t he 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 ord inance 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, t he City reiterated that the district court could hold a hearing on the nature of
the evidence prese nted below or review the hearing officer ' s finding s 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 C ourt finds that review of the City ' s determination is not possible because of the lack of an administrative record.5

Accordingly, J udgment 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 t he
hearing officer

. Ernatt then cross

- appealed , raising some of the same constitutional
arguments he raised below

.

A NALYSIS

I. T he district court did no t 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 ' Ret irement Bd. of Trustees , 291 Kan. 266, 272,

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

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 dangero us. The dog
owner may appeal the control officer ' s determination to a municipal court , which act s as6

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 offi cer 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 D istrict C ourt. 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 appeal s from order s or judgment s 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):7 "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 C ounty 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 C ounty Sheriff ' s Civil Serv ice 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 capriciou s. 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, t his 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 Er natt ' s favor
was wrong per se. T he Ci ty ' s argument on appeal raises the narrow issue of whether the8

district court mis understood 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 ba sed 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 th at complicate
nearly every facet of this case starting with the initial investigation and culminating in
this appeal.

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

ordi n ance 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 Service s 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 identif y the dog th at 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 for9

information f

r om 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 ch allenge of reversing the determination made by the officer at
every step of the proceedings with the ordinances in question mak ing it difficult to meet
that challenge.

The next sticking point arise s from the appeal of the potentially dangerous dog

determ ination 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

dete rmined 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 C ity argued

the ordinance s did not allow affirmative defenses

, and there is no record of the court ' s ruling on these matters. There were objection s made to some of the witnesses Ernatt
offered who were not allowed to testify

. Again

, there is no record of the court ' s ruling s. After the court sustained the finding of a potentially dangerous dog, Ernatt appealed to

the district court.

It is quite cle ar 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

.10

The City argues that K. S.A. 60

- 21 01(d) allows the district court to hear evidence

. But t he 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
indepen dent judgment on the merits of issues not addressed by a board of county

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

60

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

- part

standar d 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 t o 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 exercis e its independent judgement. And without a record of the
proceeding appealed, the district court cannot determine whether substantial evidence
supported the hearing officer's finding s

.11

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

. W hile 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 a n 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 hand s 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 t o show that the district court abused that

discretion

. We affirm the district court.

II. T his 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 ' s12

dangerous dog ordinance scheme is unconstitutionally vague and overbroad

. The district

court ruled in Ernatt ' s fa vor 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 Su pp. 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.