The act, also known as Proposition 2, was an anti-cruelty ballot initiative drafted, promoted, and sponsored by the HSUS and adopted by a significant majority of California voters more than seven years ago. The act bans agricultural operations from tethering or confining any gestating pig, veal calf, or egg-laying hen in a manner that prevents the animal from lying down, standing up, and fully extending its limbs without touching the sides of any enclosure or another animal, or from turning around freely. Cal. Health & Safety Code §§ 25990–25991. Violations of Proposition 2 are misdemeanors punishable by fines not to exceed $1,000, imprisonment for up to 180 days, or both. The act served an important purpose because about 95 percent of American egg-laying hens are confined to “battery cages,” wire confinements so small that the hens cannot flap their wings, nest, roost, or, in many cases, even turn around. That confinement causes distress to hens trying to lay eggs. Hens in battery cages stand night and day on painful, sloping wire mesh with little to no mobility. Battery cage confinement also increases the possibility of salmonella contamination of eggs, which causes serious human illnesses. The act prohibits California farmers from keeping their hens in battery cages. The act’s same confinement standards apply for gestating pigs and veal calves, but the legal challenges discussed in this article relate to the standards for egg-laying hens.
In 2010, the California legislature passed AB 1437, which extended Proposition 2’s confinement standards to all eggs sold in California, regardless of their origin. Cal. Health & Safety Code § 25996. AB 1437 requires that egg producers outside the state meet Proposition 2’s confinement standards if they want access to the California egg market. Both Proposition 2 and AB 1437 took effect in 2015, several years after their passage, so that businesses would have time to adapt and comply.
Even before they took effect, Proposition 2 and AB 1437 spawned numerous lawsuits challenging the laws. In the first challenge, a California egg producer sued the State of California and the HSUS in state court in December 2010 for declaratory and injunctive relief. The producer alleged that Proposition 2 was unconstitutionally vague because it did not tell farmers what size cage would be in compliance with Proposition 2’s requirements. Schiff Hardin filed a demurrer, the California equivalent of a motion to dismiss, on behalf of the HSUS on ripeness grounds, i.e., that the legislation had not come into effect and there was no enforcement action pending. The demurrer was sustained, and the case was dismissed. JS West Milling Co., Inc. v. State, No. 10-CECG-04225 (Cal. Super. Ct. Oct. 14, 2011).
In the second challenge, a trustee of a family trust owning California egg farms sued the State of California in federal court for declaratory and injunctive relief, alleging that Proposition 2 violated federal due process and the “dormant Commerce Clause.” Schiff Hardin intervened on behalf of the HSUS and filed a motion to dismiss. The district court ruled on the merits of the plaintiff’s claims. Because the act had not yet taken effect, the plaintiff could only raise a facial due process (vagueness) challenge, rather than an as-applied challenge. The plaintiff had to show that the act was impermissibly vague in all possible circumstances. In dismissing the due process claim, the court stated that the plaintiff did not “present a single example of how Proposition 2 would be vague in its application, much less in all of its applications.” Cramer v. Brown, No. 2:12-CV-3130-JFW-JEM (C.D. Cal. Sept. 12, 2012). In rejecting the Commerce Clause claim, the court ruled that the plaintiff had not alleged sufficient facts at more than a “speculative level” that Proposition 2 would place an excessive burden on interstate commerce. Id. Accordingly, the court concluded that the act was not unconstitutionally vague and did not violate the federal Commerce Clause. The plaintiff appealed, and the Ninth Circuit unanimously affirmed the dismissal. Cramer v. Harris, 591 F. App’x 634 (9th Cir. 2015).
In the third challenge, the Association of California Egg Farmers (ACEF) sued the State of California and the state’s attorney general in a state court case that mirrored the federal court action. This suit, like the ones before it, sought a declaration that Proposition 2 was impermissibly vague. This time, however, the plaintiff claimed a due process violation under the state constitution. Because Proposition 2 still had not taken effect, the ACEF had to bring a facial challenge to its constitutionality. The HSUS again intervened, and the HSUS and the State filed demurrers to the complaint. The court sustained the demurrers. It ruled that Proposition 2’s definition of confinement standards in terms of “animal behaviors rather than in square inches” did not make the statute facially vague. Ass’n of Calif. Egg Farms v. State, No. 12-CECG-03695-DSB (Cal. Super. Ct. Aug. 22, 2013). The ACEF appealed but dropped the appeal before briefing, leaving the dismissal intact.
Following these unsuccessful vagueness challenges, opponents of the legislation took a new approach. In the latest suit filed in February 2014, the Missouri state attorney general, along with the attorneys general of several states and the governor of Iowa, sued the attorney general of California and the secretary of the California Department of Food and Agriculture, seeking to have the federal court in Sacramento declare AB 1437 invalid. The plaintiffs alleged that AB 1437 violated the Commerce and Supremacy Clauses of the U.S. Constitution.
The plaintiffs claimed that the legislation was expressly and implicitly preempted by the federal Egg Products Inspection Act (EPIA), 21 U.S.C. § 1031 et seq., and imposed an impermissible burden on interstate commerce. The plaintiffs relied on the provision in the EPIA that bars any state from adopting “standards of quality [or] condition [of eggs] . . . , which are in addition to or different from the official Federal standards.” 21 U.S.C. § 1052(b). The plaintiffs argued that because AB 1437 purported to reduce the risk of salmonella in eggs, the standards of AB 1437 were standards regarding the “condition” or “quality” of the eggs and were expressly preempted. As to the dormant Commerce Clause claim, the plaintiffs argued that AB 1437 regulated extraterritorial activity by requiring out-of-state egg producers to adopt more expensive production methods and that AB 1437 imposed burdens on commerce that substantially outweighed any putative benefit. The court did not reach the merits of these claims.
In this case, the plaintiff states were suing under the doctrine of parens patriae, which allows a state to bring suit on behalf of its citizens if a substantial segment of its population is injured, the injured interests are not solely private party interests, and the state expresses a quasi-sovereign interest. Table Bluff Reservation (Wiyot Tribe) v. Philip Morris, Inc., 256 F.3d 879, 885 (9th Cir. 2001). The HSUS was granted leave to intervene, and it and the defendants filed motions to dismiss.
The district court granted the motions to dismiss because the plaintiffs lacked standing. Missouri v. Harris, No. 2:14-cv-00341 (C.D. Cal. Oct. 2, 2014). The plaintiffs claimed to have standing under the parens patriae doctrine. However, the HSUS and the defendants explained that the plaintiffs could not establish parens patriae standing to bring the suit because they failed to allege facts to show harm to a sufficiently substantial segment of their populations, failed to articulate interests other than those of private parties, and failed to allege any quasi-governmental interests at stake. The district court agreed. In essence, the allegations in the complaint were only “generalized grievances on behalf of plaintiffs’ egg farmers and potential injuries the farmers face.” Id. Thus, the plaintiffs were “only nominal parties without real interests of their own.” Id.
Moreover, the district court ruled that the plaintiffs’ claims were not justiciable because the plaintiffs failed to show that their few egg producers exporting to California were not already compliant with the anti-cruelty law. Therefore, the harm asserted was both hypothetical and abstract. Id. The district court dismissed the complaint without leave to amend because any additional allegations would relate solely to a small group of egg producers and thus could not cure the identified defects in the plaintiffs’ standing asparens patriae. In March 2015, the plaintiffs appealed to the Ninth Circuit. Missouri ex rel. Chris Koster, Attorney General v. Harris, No. 14-17111 (9th Cir. Mar. 4, 2015). The appellants asserted that they have parens patriae standing through their Commerce Clause challenge because claims of economic discrimination against a state’s citizens implicate a quasi-sovereign interest. The appellees reiterated their position that the doctrine of parens patriae is not satisfied and that any defects could not be cured. The appeal has attracted amicus curiaebriefs on both sides. The case is now fully briefed and awaiting oral argument and decision.
As evidenced by the Proposition 2 cases, animal law is yet another field of opportunity, like indigent criminal defense or assistance to asylum seekers, for junior litigation attorneys to gain valuable experience. Animal law enables new associates to develop skills in case strategy, briefing and arguing constitutional claims, advancing important societal values, and providing high-quality, needed legal help for nonprofit groups engaged in contemporary social justice movements.
Molly L. Wiltshire is an associate at Schiff Hardin in Chicago, Illinois.