Monday, March 31, 2014

Understand That Chicago's Ban Against Companion Animal Retail Sales Isn't A Complete Prohibition


Understand That Chicago's Ban Against Companion Animal Retail Sales Isn't A Complete Prohibition

The following announcement was recently posted on the website of the Chicago City Clerk: 

MARCH 05, 2014   

From the Office of Chicago City Clerk Susana Mendoza:    

Thank you! Because of your passionate support for animal advocacy, today we passed a piece of landmark legislation in the City of Chicago.

Earlier today, the Chicago City Council voted 49-1 to approve the Companion Animal & Consumer Protection Ordinance. It requires retail pet stores to source dogs, cats and rabbits only from shelters and other humane not-for-profit organizations. 

The legislation cuts off a pipeline of animals from the horrendous puppy mill industry and instead moves the City to a retail pet sales model that focuses on adopting out the many, many homeless animals in need of homes in this City.  

It is our hope that the overwhelming vote today will create a flood of support for similar legislation throughout the rest of the country. Again, thank you for helping make history in the City of Chicago. This truly is a change for the better and it would not have happened with you.  

As ISAR'S supporters know, we have prepared our own Model Prohibition of Retail Commercial Sale of Dogs and Cats Statute.

The following are ISAR's initial comments regarding the Chicago ordinance's provisions, including comparisons to our Model Statute.

1. It is great progress that one of America's largest cities has recognized the infamous existence of companion animal mills. Too few cities have, and mills continue to crank out countless numbers of these living creatures with little or no oversight.

2. As ISAR has stressed in the memorandum accompanying our Model Statute, it is essential that anti-retail sale legislation contain legislative findings. The Chicago ordinance commendably does, extensively.
3. Chicago's findings -- expressed in predicate "Whereas" statements -- include information about the constitutional source of the city's legislative power; information about mills in general, and their retail impact on the city in particular; abuses suffered by animals in mills; the lack of enforcement resources and consequential operational immunity enjoyed by mills; the city's euthanasia rate supported by apparently unimpeachable facts; costs to the city for animal care; benefit to the city, financially and otherwise, in prohibiting the conduct proscribed by the ordinance; how pet stores can prosper without selling companion animals;  consumers' ability, despite the ordinance, to obtain a companion animal from a breeder, rescue organization, or shelter; that other cities have enacted legislation affecting sale of mill animals, some banning entirely the retail sale of rabbits no matter their source; how current federal, state, and city laws do not deal with this subject; and why it is in the interest of the city and its inhabitants to regulate the sale of companion animals originating in mills.
Based on these findings -- which provide an unimpeachable factual basis upon which to rest the new law -- the ordinance defines "offers for sale," "retailer," and "rescue organization."

Next comes the core provision, Section 4-384-015 (b): "A retailer may offer for sale only those dogs, cats or rabbits that the retailer has obtained from (1) an animal control center, animal care facility, kennel, pound or training facility operated by any subdivision of local, state or federal government; or (2) a humane society or rescue organization." (Our emphasis.)

In other words, there can be no retail sale of dogs, cats, or rabbits in the City of Chicago of animals that originated in a mill.

Other provisions require certain disclosures when an authorized sale occurs.  

ISAR applauds the City of Chicago for taking what we consider to be not the last word on the subject, but rather a desirable way-station on the road to ban all retail sales. In this regard, please note that the Chicago ordinance still allows sale by kennels. ISAR opposes this breeder exception. Note also that if allowed "sales" from other entities named in Section 4-384-015(b) are in reality adoptions, we are in agreement.

Please see ISAR's Model Statute.

Friday, March 14, 2014

Do Not Fear That Animal Protection Legislation Will Be Ruled Unconstitutional


Do Not Fear That Animal Protection Legislation Will Be Ruled Unconstitutional

ISAR often hears that animal protection organizations are contemplating the preparation and introduction of pro-animal legislation, but fear that courts may rule that the bills won't pass constitutional muster.

They worry unnecessarily.

The fact is that except for the most egregious bills (e.g., imposition of a $10,000 tax per animal levied on the custodians of companion animals), animal protection laws will be upheld against constitutional challenges. Doubters should consider what has become of other constitutional challenges to various animal protection laws.

For example, various levels of government throughout the United States are increasingly enacting laws that severely restrict, or even prohibit, the breeding and owning of cats and dogs; some of these laws are breed-specific, some apply generally.

There is, of course, substantial opposition to these types of laws, especially from organizations such as the American Kennel Club, which have a huge financial stake in the breeding of dogs. Among their many other arguments against anti-breeding laws, their opponents claim they are unconstitutional.

They are not.

Let's examine anti-breeding laws and constitutional law to illustrate why.

The core of a typical anti-breeding law is its "findings," which usually contain statements such as:
  • The euthanasia of unwanted cats and dogs is rampant, with totals annually in the millions of animals;
  • The destruction of these animals, though necessary, is immoral and not befitting a humane society;
  • The practice is not cost effective;
  • The root cause of this mass killing is the problem of overpopulation, which causes social and other problems beyond those created by mass euthanasia.
Based on findings like these, some laws provide for a moratorium on the breeding of cats and dogs. If the overpopulation problem in that jurisdiction isn't reduced, then a mandatory spaying and neutering program is often provided as Plan "B."

Equally important is the "Declaration of Intent" found in typical anti-breeding laws. For example:

The Board of Supervisors of the Town of Wherever hereby finds and declares that it intends to provide for the public health safety, and welfare, through a moratorium on the breeding of cats and dogs owned, harbored, or kept in this municipality in order to bring the population of abandoned and stray animals to an acceptable level for protection of the public health, safety, and welfare.

To understand why anti-breeding laws will be held constitutional if defended properly, as will mandatory spay/neuter and other animal protection laws, it is necessary first to understand something about the American system of government.  

When the United States was founded, the Constitution created a new federal government possessing substantial power. Concern was expressed about whether any power was left to the states. To address that concern, the Tenth Amendment to the federal Constitution reserved to the states what is commonly referred to as the "police power" -- not in the sense of law enforcement, but rather the power to legislate for the public's health, safety, welfare and morals.

All state constitutions, in turn, delegate its police power from the state to various municipalities -- e.g., cities, counties, towns, villages -- which gives the latter power to pass laws related to the public health, safety, welfare and morals.

But those laws, like all legislative enactments made at every level of government must pass the test of constitutionality.

Laws affecting rights so fundamental that they are expressly protected by the federal and state constitutions -- e.g., speech, press, religion -- are tested by a very strict standard. In effect, laws affecting these kinds of fundamental rights (e.g., censoring media reporting, regulating church services) must advance an extremely important (i.e., "compelling") governmental interest (e.g., not exposing to our enemies plans for the coming D-Day invasion), and be virtually the only way to accomplish that goal.

On the other hand, laws not affecting such fundamental rights are measured for constitutionality by a much less demanding test: Is there a problem properly within the government's area of concern (e.g. teenage driving), and is the enacted law (e.g. requiring twenty-hours of classes and road testing) a rational way to deal with that problem? Put another way, it is a matter of legitimate "ends" and reasonable "means."

Since, for example, anti-breeding -- and mandatory spay/neuter and other animal protection laws -- do not affect any fundamental rights, they would be tested by this lesser standard.

Clearly, following this example, the number of unwanted cats and dogs causes significant social problems: senseless killing, health risks, wasted taxes, and more. Clearly, these problems raise important issues of public health, safety, welfare -- and even morals. In other words, the "end" of mandatory spay/neuter and anti-breeding laws is entirely legitimate constitutionally.

Thus, the next (and last) question is one of "means": Are anti-breeding and mandatory spay/neuter laws a reasonable way to deal with the problem? The "practical" answer is obvious: If there are too many unwanted cats and dogs, it's certainly reasonable to prevent the breeding of any more in order to prevent the population from growing, allowing normal attrition to reduce the existing population.

The more basic answer is that the overpopulation problem is a moral outrage. Government has the constitutional power and the moral duty to solve it -- to alleviate, if not eliminate, visiting the sins of irresponsible owners and breeders on innocent animals. When it comes to anti-breeding and mandatory spay/neuter laws, the end justifies the means --constitutionally and morally. The same can be said for most other proposed animal protection legislation. As the Supreme Judicial Court of Massachusetts opined in 1931, "[t]he natural, essential, and unalienable rights of men to acquire, possess and protect property are subject to reasonable regulation in the interest of public health, safety and morals."

Indeed, a wide variety of statutes and ordinances affecting animals have been upheld against constitutional challenge. Some examples in the federal, state and other courts appear HERE.

Earlier this month, the United States Court of Appeals for the 6th Circuit affirmed a federal district court ruling that a recent Ohio statute limiting the private ownership of exotic animals easily passed constitutional muster.

Just as the State of Ohio was not intimidated by predictions that the proposed legislation would be ruled unconstitutional, no animal protection activists should fear unfavorable rulings -- not if proposed animal protection bills are carefully drafted, and defended by competent constitutional lawyers.