Jurisdictional issues guided four of the five decisions
WASHINGTON D.C., DES MOINES, Iowa, TORONTO, Ontario––A January 2019 blizzard of court decisions, rendered in both the U.S. and Canada, appear to have come down heavily in favor of improved animal welfare law enforcement on behalf of farmed animals.
The effect of the U.S. decisions will be felt immediately. Depending on how the Ontario government responds, however, the Canadian ruling may have the most profound long-term effect, addressing not only what laws are enforced but also who decides how and when to investigate cases and file criminal charges.
What were the cases?
The U.S. Supreme Court on January 7, 2019 declined to hear appeals of lower court verdicts upholding two California laws and another in Massachusetts, passed in 2004, 2008, and 2009, respectively.
Judge James Gritzner of the U.S. District Court for the Southern District of Iowa on January 9, 2019 rendered summary judgement against enforcement of the state’s so-called “ag gag” law, passed to stop undercover investigations of conditions at factory-style farms.
Ontario Superior Court Justice Timothy Minnema several days earlier stripped the Ontario SPCA of law enforcement authority, at least provisionally, after the Ontario SPCA in October 2018 unilaterally withdrew from enforcing legislation pertaining to farmed animals, horses, cockfighting, and pit bulls, partly to cut costs, partly to avoid having to euthanize impounded animals.
The U.S. Supreme Court may have rejected the appeals of the California and Massachusetts farmed animal legislation in part because Justices Neil Gorsuch and Brett Kavanaugh, both appointed by U.S. President Donald Trump, tend to follow interpretations of the U.S. Constitution favoring “states’ rights.”
The phrase “states’ rights” is usually invoked in support of laws, or interpretations of laws, permitting racial discrimination.
The California and Massachusetts legislation on behalf of farmed animals is enforced in part by prohibiting the import of eggs, veal, and pork products into those states if the hens, calves, and pigs used to produce them have not been raised according to the California and Massachusetts animal welfare standards.
This requires an interpretation of the U.S. Constitution that allows states to enforce legislation superseding federal standards. A ruling against the California and Massachusetts laws might have been interpreted as a precedent against “states’ rights,” even though the immediate subject of the laws had nothing to do with traditional “states’ rights” concerns.
California Proposition 2 upheld
Explained New Food Economy features editor Joe Fassler, “The dispute started with California’s Prevention of Farm Animal Cruelty Act, a 2008 ballot measure also known as Proposition 2, which mandated that the state’s farm animals could not be confined ‘in a manner that does not allow them to turn around freely, lie down, stand up, and fully extend their limbs.’”
This requirement, if strictly enforced, would have required that egg-laying hens be raised only in cage-free environments, as well as prohibiting the use of veal crates and gestation stalls for sows, in which they are confined throughout pregnancy and nursing.
Proposition 2 was not strictly enforced, particularly as it pertained to egg-laying hens, leading to the November 2018 passage of a second ballot measure, Proposition 12, touted by the Humane Society of the U.S. and other sponsors as a fix for loopholes left in Proposition 2, but denounced by the Humane Farming Association and People for the Ethical Treatment of Animals, among others, for leaving major loopholes in place.
Interstate Commerce Clause
“After Proposition 2’s passage,” continued Fassler, “California egg producers argued that the new law put them at a disadvantage compared to other states that weren’t subject to the same rules. So the state legislature successfully moved to ban all eggs from caged hens—regardless of where they are laid. In 2014, that prompted a number of other states,” notably Missouri and Iowa, “to sue,” arguing that Proposition 2 improperly supersedes the federal Egg Products Inspection Act and violates the Interstate Commerce Clause of the U.S. Constitution.
The Interstate Commerce Clause limits the ability of individual states to impose trade barriers against other states.
California foie gras ban also upheld
Also on January 7, 2019, the U.S. Supreme Court rejected without a hearing an appeal by foie gras producers, led by the Association des Eleveurs de Canards et d’Oies du Quebec, against a California ban on sales of foie gras. Foie gras, a product made from the livers of ducks and geese who have been artificially fattened by pouring grain through tubes thrust down the birds’ throats.
California banned foie gras in 2004, but the ban did not take effect until 2012, surviving several court challenges meanwhile, and a previous appeal to the U.S. Supreme Court, rejected in 2014.
The San Francisco-based 9th U.S. Circuit Court of Appeals upheld the California ban in 2017.
Iowa “ag gag” tossed
Ruling against the Iowa “ag gag” law, U.S. District Judge James Gritzner ruled that the state had failed to show that any harm was done to agribusiness companies operating in a legal manner when workers photographed or otherwise recorded what they believed to be animal abuse.
Gritzner found that the “ag gag” law violated the fundamental First Amendment right to freedom of expression.
The Iowa law, recounted Perry Beeman, managing editor of the Des Moines Business Record, was passed by the state legislature in 2012, “supported by livestock interests,” and was “intended to stop undercover investigations of animal cruelty.”
Gritzner noted that similar state “ag gag” laws had already been thrown out for violating First Amendment rights in Wyoming, Utah and Idaho.
Behind the law
Continued Beeman, “Gritzner will rule later on injunctions and lawyer fees, after giving the parties time to file briefs. Iowa’s law was one of a couple dozen that were passed over the span of a decade when farm groups heavily lobbied state legislatures and distributed a model state law. The laws were passed after activists recorded workers abusing pigs and chickens.”
Gritzner noted that before the “ag gag” law was adopted, Iowa state law already “prohibited disrupting, destroying, or damaging property at an animal facility, or on crop operation property, and also the use of pathogens to threaten animals and crops.”
Summarized Beeman, “The [‘ag gag’] amendment banned people from obtaining access to an ‘agriculture production facility’ by false pretenses or giving false statements while applying for a job ‘with the intent to commit an act not authorized by the owner’ of the farm.”
Admitted purpose was to stop activists
Recalled Beeman, “At the time the bill was debated, Senator Tom Reilly said, ‘What we’re aiming at is stopping these groups that go out and gin up campaigns that they use to raise money by trying to give the agriculture industry a bad name.’ Violations are various degrees of misdemeanor.”
A coalition of organizations led by the Animal Legal Defense Fund, People for the Ethical Treatment of Animals, and the Center for Food Safety filed the request for summary judgement, supported by briefs from the Iowa Freedom of Information Council and the Iowa Center for Public Affairs Journalism.
Added Beeman, “Lynn Hicks, spokesman for the Iowa attorney general’s office, said state lawyers were reviewing the decision and had not decided whether to appeal.”
Ontario animal law enforcement
Rhetorically asked Toronto Star national affairs columnist Thomas Walkom, commenting on the Ontario verdict, “Who should have the power to enforce animal cruelty laws? In Ontario for the last 99 years, the Ontario Society for the Prevention of Cruelty to Animals has played this crucial role,” receiving $5.75 million per year from the provincial government to do so, despite having refused since October 2018 to enforce legislation pertaining to farmed animals, horses, cockfighting, and pit bulls.
Superior Court Justice Timothy Minnema, however, “found that the law empowering the private charitable organization to exercise police powers in Ontario is fundamentally flawed,” summarized Walkom. “In particular, the judge ruled that the province was wrong to grant policing powers to an agency that in his words was ‘opaque, insular, unaccountable and potentially subject to external influences.’ He gave the province a year to fix the law.”
Law may be changed, but how?
Added Walkom, “In theory, the constitutional dilemma could be easily rectified. The judge noted that other provinces have solved this problem by ensuring that animal protection officers are subject to the same kind of oversight as police.
“In Alberta, for instance,” Walkom said, “animal cruelty inspectors are appointed by the provincial government. In Newfoundland and Labrador, regular police are used to enforce animal cruelty laws.”
Ontario could also follow the example of Quebec, which in 2005 created an independent nonprofit crown corporation, called Anima Quebec, to enforce provincial humane law. This sidestepped a long-running conflict between the Montreal SPCA and regional humane societies about which had jurisdiction over cases occurring outside the immediate Montreal area.
Ontario government is wild card
The Ontario SPCA and the Toronto SPCA have for more than 30 years clashed comparably.
How the Ontario government may respond to the Minnema ruling is anyone’s guess. The current government of Ontario, in office since June 2018, is headed by Progressive Conservative Party premier Doug Ford. Ford opposes the provincial ban on pit bulls, adopted in 2005 at recommendation of then-provincial justice minister Michael Bryant, a member of the Liberal Party who is now general counsel for the Canadian Civil Liberties Association.
Ford has in the past claimed to be an animal advocate and at one time claimed to be an “ethical vegetarian,” but supports a pending proposal to allow sport hunters to kill up to 50 double-crested cormorants per day.