Opinion
Case No. 20001123-CA.
Filed May 10, 2001. (Not For Official Publication)
Appeal from the Seventh District, Monticello Division, The Honorable Lyle R. Anderson.
Craig C. Halls, Blanding, for Appellee.
Rosalie Reilly, Monticello, for Appellant.
Before Judges Greenwood, Billings, and Orme.
MEMORANDUM DECISION
This matter is before the court on motions for summary disposition filed by the city and by the court.
Appellant was convicted of a class C misdemeanor for violating a city ordinance that prohibits keeping a dog whose barking annoys the neighborhood. After his conviction in justice court, he appealed to the district court and received a trial de novo in accordance with Utah Code Ann. § 76-120-5 (1999). He was again convicted and now appeals.
The city argues that we do not have jurisdiction over the appeal because the trial court did not rule on a constitutional issue. Utah Code Ann. § 78-5-120 (Supp. 2000) provides that "[t]he judgment after trial de novo may not be appealed unless the court rules on the constitutionality of a statute or ordinance." The city claims that the court ruled on the validity, rather than the constitutionality, of the ordinance under which appellant was convicted. Appellant responds that he raised the issue of whether the ordinance was constitutionally overbroad in his motion to dismiss.
Even if appellant did raise a constitutional challenge to the ordinance, the plain language of section 78-5-120 indicates that this court has jurisdiction only if the lower court actually rules on the constitutionality of a statute or ordinance. Although appellant raised a constitutional issue, the trial court denied the motion to dismiss without reaching it. The court confined its analysis to the application of Utah Code Ann. § 10-8-84 (1999), which authorizes cities to enact such ordinances as are necessary and proper to preserve the health and improve the peace, good order, and comfort of the city's inhabitants.
In light of the foregoing, we dismiss the appeal.
Pamela T. Greenwood, Presiding Judge.
Judith M. Billings, Judge and Gregory K. Orme, Judge.