Little Rock asked a federal judge Friday to throw out a lawsuit challenging the constitutionality of a new city ordinance that prevents a mother and son from keeping their pet Vietnamese potbellied pig at their home in the Pennbrook-Clover Hill neighborhood.
The lawsuit, filed Dec. 2 by Jill Latham Battles and Jimmie Battles, takes issue with City Ordinance 20,957, which the Board of Directors passed Nov. 18 in response to a dispute between Jill Battles and her neighbors.
The ordinance, which took effect immediately, makes it illegal "to keep cows, goats, horses, Vietnamese pot-bellied pigs or other lawfully allowed hoofed animals in a pen or lot, pasture, yard, home or building that is within 300 feet of any residence other than the residence of the livestock owner or business establishment of the livestock owner."
It repealed an earlier ordinance that made an exception to a prohibition against hogs, pig or swine for Vietnamese potbellied pigs, such as W.P. Sooie, the 70-pound pet that Battles has had for more than two years. Battles says the pig is an indoor pet who sleeps with her 12-year-old son and goes outside only to urinate and defecate.
It is the waste that has prompted neighbors to complain. They say Battles doesn't properly clean up after the pig, which defecates and urinates along a fence.
Battles has said she researched city ordinances before purchasing the pig, which is nearing 3 years old. She said no neighbors complained about the pig when she lived in the Briarwood neighborhood.
Battles successfully challenged a citation the city issued her shortly after she moved to her current neighborhood nearly two years ago. But a municipal judge who found in her favor said the city needed to clarify two conflicting ordinances, and his directive led to the recent passage of the new ordinance. One of the previous ordinances made it illegal to keep hogs, pig or swine within the city limits, with the exception of Vietnamese potbellied pigs. The other made it illegal to keep cows, goats, horses and other hoofed animals within a 300-foot radius of other homes.
Battles' federal lawsuit, assigned to U.S. District Judge Kristine Baker, alleges that the ordinance violates the U.S. and state constitutions, and seeks an injunction to prevent the city from enforcing it. Meanwhile, at some point before the suit was filed, the city gave Battles 30 days to remove the pig from the home.
In a motion filed Friday asking Baker to dismiss the case, Deputy City Attorney Clifford Sward said the ordinance doesn't constitute a "Bill of Attainder," as the lawsuit claims. A Bill of Attainder is a legislative act that inflicts punishment without a judicial trial, and is prohibited by the U.S. Constitution.
Sward said the ordinance may cause "inconvenience" but doesn't constitute "punishment," and that the city board has the power to enact ordinances "to curb behavior which it regards as harmful to the public welfare."
He noted: "Potbellied pigs, very much like goats, cattle and other livestock, defecate outside, producing bad smells and drawing flies. This, in turn, impacts the quality of life for the surrounding neighbors."
Sward defended the city against Battles' claims of equal-protection and due-process violations by arguing that even if the ordinance stemmed from her situation specifically, it applies to everyone living in the city, and that Battles "took part in the democratic process but ultimately failed to win the day."
Sward said another assertion in the lawsuit -- that by requiring the pig's removal from the Battles' home, the city is unjustly taking property without compensation -- is false because the ordinance regulates "the manner and places in which they can keep the pig, but it does not affect their ownership of the pig. ... In order to avoid the effect of the ordinance at issue, the plaintiffs need only move their pig. (They) may continue to keep the pig at any place within the city limits, so long as the pig is kept 300 feet from any residence or business, other than their own."
"It may well be ... that the plaintiffs expected to be able to keep their pig in perpetuity within the city limits when they purchased their real property, but such an expectation does not amount to a legitimate property right for which compensation is required," the motion said.
Battles' lawsuit sought punitive damages against the city, but Sward said the city is immune from punitive damages.
In short, he said, Battles has "failed to state a claim upon which relief can be granted."
Metro on 12/20/2014