CALIFORNIA PUBLIC RECORDS LITIGATION

The Humane Society of the United States v. The Regents of the University of California

Evans & Page represents The HSUS in litigation to acquire public documents that are being withheld by the University of California.  The documents include emails between U.C. employees and poultry farmers.  Documents disclosed to date hint at the fact that the AIC was asked by the poultry industry to prepare the report, as opposed to independently deciding to analyze the issues (see for example this document).  A copy of the initiating petition is here.
 
At the University of California Davis there is a department called the Agricultural Issues Center (AIC).  At a time when Californians were planning to vote on Proposition 2, which was eventually passed, the AIC issued a report stating that it would cost consumers more money for eggs that are produced by hens that are provided with more space (than the hens are currently provided).  According to the study, the price increase would be 1¢ per egg if the hens were given more room as mandated by Prop 2. 

FARM ANIMALS

Levine, et al. v. Johanns

This federal lawsuit challenges a United States Department of Agriculture (USDA) notice stating that the federal humane slaughter laws do not apply to poultry.  The 1958 Humane Methods of Slaughter Act states that "'cattle, calves, horses, mules, sheep, swine, and other livestock' must be slaughtered by humane methods."  USDA’s attorneys argue the “other livestock” was not meant to include poultry and was intended to be limited to quadrupeds. 

Individual poultry consumers, the Humane Society of the United States (HSUS), East Bay Animal Advocates (EBAA), workers’ rights organizations, and poultry processing plant workers filed suit claiming that the USDA notice was arbitrary and capricious because, by stating that there was no federal statute governing the humane slaughter of poultry, the Notice disregarded the application of the 1958 HMSA humane slaughter requirements to "other livestock.” 

The USDA moved to dismiss the action based on, inter alia, plaintiffs’ lack of standing.  The consumers’ standing is based on their increased risk of consuming bacterially infected poultry due to inhumane slaughter of chickens.  The federal court ruled that the risk of contracting a food-borne illness was an injury-in-fact that provided the poultry consumers standing. The poultry workers standing is based on the more dangerous working conditions that are a result of inhumane slaughter. The court held that the physical harm the birds inflicted on the workers while the birds were trying to avoid being slaughtered, and the emotional distress the workers suffered by seeing conscious birds suffer, was enough to establish injury-in-fact.  

With regard to HSUS and EBAA, the court dismissed them as plaintiffs.  The court held that the asserted interest in the lawsuit (risk to consumer health) was not germane to the purpose of the organizations.

Evans & Page is co-counsel with the HSUS legal team.

FREE SPEECH

Alfredo Kuba and San Diego Animal Advocates v. SeaWorld, Inc., et al.

Plaintiffs attempted to peacefully demonstrate at Sea World Adventure Park in San Diego and were kicked off the property and threatened with arrest.  Sea World rents the land for its operations from the City of San Diego and the rent is calculated as a percentage of Sea World’s revenue.  Sea World has a policy of forbidding all free speech activities.  Plaintiffs have sued under the California and United States Constitution’s free speech laws. 

The case is being heard in the Southern District of California (federal court).  In January 2009, the plaintiffs and defendants completed briefing on their cross-motions for summary judgment.  The motions were being considered by the Honorable Michael M. Anello.

Plaintiffs’ federal court jurisdiction was based on 42 U.S.C. section 1983.1 Judge Anello ruled that there was not sufficient evidence to demonstrate that SeaWorld should be considered as a state actor and therefore Plaintiffs could not succeed on their section 1983 claim. Since Plaintiffs’ case is also, and separately (from section 1983), based on the California State Constitution’s Liberty of Speech Clause, Judge Anello addressed Plaintiffs’ California Constitutional claims by ruling that the court was declining to exercise supplemental jurisdiction over the California claim.

Plaintiffs have appealed Judge Anello’s ruling to the 9th Circuit Court of Appeals. Plaintiffs/Appellants’ opening brief is due October 21, 2009. Since Judge Anello declined to decide the central issue in this case, i.e., Plaintiffs’ right (under the California Constitution) to peacefully demonstrate in front of SeaWorld, Plaintiffs will continue to litigate this case until a court reaches a final decision that addresses the issues raised. If this means filing a lawsuit in California State Court after the 9th Circuit Court of Appeals reaches a decision, then Plaintiffs will pursue that course.

FOOTNOTE

1. Section 1983 is entitled “Civil action for deprivation of rights” and it states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.