LOUISVILLE, Ky., (WDRB) --When Olivia Johnson's dog, Franklin, was confiscated after attacking another dog in 2011, Johnson ended up with more problems than just trying to save her pet.

She became a convicted criminal.

In 2012, Johnson was sentenced to 90 days in jail and ordered to pay a $250 fine after a Jefferson District Court judge found her guilty of a misdemeanor for violating a city ordinance by failing to “restrain a dangerous dog” -- even though the dog had been in Johnson's mother's care at the time. The judge also gave Metro Animal Services the discretion to euthanize Franklin.

David Neihaus, an attorney for Johnson, appealed the ruling, arguing, in part, that while the Metro Council has the right to make ordinances that can impose civil fines or take Franklin away, it can't “make somebody a criminal.”

“The determination of what's a crime and what's not is done at the state level,” Neihaus said during a 2012 court hearing. “The Metro Council cannot create misdemeanors.”

And last month, at least three members of the Kentucky Supreme Court agreed, writing in an order that the Kentucky General Assembly, not the Metro Council, has “exclusive authority to enact and define crimes and criminal penalties.

“In the present case, Louisville Metro is essentially rewriting the Kentucky Penal Code,” Justice Bill Cunningham wrote in the Dec. 18 order, which was released last week.

The order, while not legally binding, should be a “clarion call to the legislature to remove any doubt as to where the authority to enact a criminal statute and fix its penalties lies,” Justice Mary Noble wrote.

And Cunningham wrote that the Supreme Court itself should act “today before untold others are convicted and sentenced to incarceration for crimes they did not commit.”

The opinion of the justices appears to represent a shift in the thinking of the high court and would be a “drastic change” for many Metro Council ordinances, including the dangerous dog law, said Pat Mulvihill, director of the civil division in the Jefferson County Attorney's Office.

However, Mulvihill said, the Supreme Court opinions of the three justices represented a minority of the court and isn't binding. Because of a legal technicality, the entire court could not rule on the legality of the criminal ordinances.

So while the county attorney's office will send the opinion to Metro Council members, it will recommend no immediate changes to the current laws.

“It would be premature for us to advise our clients to change how they have been operating,” Mulvihill said. “I believe we have … authority and we can exercise it until we are told we can't.”

Metro Council Democrat David Tandy, who is also an attorney, said he had not yet seen the Supreme Court opinion but also pointed out that only a minority of the justices expressed the view that the ordinances were unconstitutional.

To change the laws, another case with an ordinance calling for jail time would have to be appealed and a majority of the seven-member Supreme Court would have to agree with Cunningham, Justice Daniel Venters and Noble.

“Take it for what it's worth,” Tandy said. “It's an opinion, like others have. We'll continue to move forward and see how everything plays out.”

A call for statewide change

The opinions from the Supreme Court justices weren't just suggesting change in Jefferson County.

Cunningham wrote that there is no shortage of these laws across the state and pointed out the “astounding incongruity in criminal ordinance and punishments” among various Kentucky counties.

Lexington's vicious dog ordinance, for example, carries only a fine but no jail time. But in Louisville, dog owners like Johnson can face stiffer penalties than someone who is convicted of selling a firearm to a minor.

Meanwhile, other cities have ordinances that create crimes the justices deemed absurd – and exclusive only to those places.

In Newport, Kentucky, for example, spitting on the sidewalk is a misdemeanor crime, according to its city ordinance.

In Fort Thomas, selling dyed chicks or rabbits is a misdemeanor.

“Surely the citizens do not expect to face disparate treatment from place to place for the same acts because one city makes certain conduct a crime, another merely makes that conduct a violation,” Noble wrote. 

The full Supreme Court could not decide whether the Metro Council can create ordinances calling for criminal penalties in Johnson's case because her previous attorney never presented the argument to the original district court judge.

Instead, the high court overturned Johnson's conviction because the local ordinance was not properly enforced.

Cunningham wrote that the use of the ordinance against Johnson was “extreme” and the Supreme Court should not overlook “manifest injustice in any form,” especially if it could affect future defendants if the ordinance remains, saying the current law is unconstitutional.

In Louisville, the Metro Council has at least a dozen ordinances that have potential jail penalties, including keeping property maintained, aggressive panhandling, improper mining or doing business as an unlicensed contractor.

For ordinances that do not have a specific penalty, a misdemeanor charge applies, Mulvihill said.

The county attorney's office does not keep statistics on how many people were ordered to serve jail time based on the dangerous dog law or any of the other ordinances.

But Mulvihill said over the years there have likely been “lots of criminal prosecutions” where jail time was sought for defendants.

Such was the case involving Johnson's dog Franklin, who attacked another dog on Aug. 2, 2011, while Johnson's mom was walking him. And on Nov. 20 of that year, Franklin ran out of Johnson's apartment, again while her mother was watching him, and attacked a dog that was in the hallway.

During a trial, Jefferson District Court Judge Sean Delahanty found no legal fault on Johnson's part for the Aug. 2 incident, saying that she was not present and both of the dogs should have been better restrained.

But Delahanty ruled that when Franklin again attacked another dog four months later, he said extra caution should have been used and found Johnson guilty of failing to restrain her dog, despite Johnson not being present at the time. The penalty: 90 days in jail, which was conditionally discharged, and a $250 fine. Franklin was turned over to Metro Animal Services, where he remains while the case is pending.

Reached by phone, Johnson declined to comment until her case is over and Franklin was “back in her arms.”  Neither Neihaus nor the County Attorney's office would talk about what will happen with Johnson's case now.

During an appeals hearing in circuit court, Assistant County Attorney David Sexton defended Louisville's ordinances, saying the General Assembly gave power to local counties and cities to pass laws with criminal punishments.

But the state Supreme Court justices disagreed in their opinion last month.

It is clear the General Assembly never meant to share with counties its authority to define crimes and criminal penalties, especially when it comes to putting someone in jail, Cunningham wrote.

 “It appears that in many Kentucky cities and towns, prosecutorial discretion may be the only thing saving many of us from incarceration – and all of us from absurdity,” he wrote.

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