In December 2019, North American Meat Institute (NAMI) lost a case in a California U.S. District Court involving California’s Proposition 12. On October 15, the U.S. Court of Appeals for the Ninth Circuit issued a three-page memorandum, stating the District Judge was correct.

This state law (more detail here) requires out-of-state producers, distributors, and sellers of pork and veal to meet California’s animal welfare standards, or the products cannot be sold in California.

By January 1, 2022, all pork operations shipping pork into California will be required to have 24 square feet per sow. California’s law requires a meat processor to sell whole cuts of veal and pork from animals that were housed pursuant to California’s “space” requirements”.

California’s law was pushed through with help from the Humane Society of the United States (HSUS). In effect, the law implies that livestock confinement as practiced in the other 49 states is animal cruelty.

One of the critical arguments NAMI makes, as discussed in my blog last October, reflects a common sense argument all in agriculture will recognize.  “Proposition 12’s sales ban violates the Constitution’s Commerce Clause because it imposes substantial burdens on interstate commerce that clearly outweigh any valid state interest.”

Related:California wins again on Proposition 12

What the judge said

U.S. District Court Judge Christina Snyder stated that NAMI “…failed to establish that discrimination against out-of-state commerce for economic protectionism…”

The Ninth Circuit appears to be so ashamed of this memorandum that it says “This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit rule…”  

NAMI had appealed the district court’s denial of its motion for preliminary injunction to stop the implementation of Proposition 12. Following the news that the court had denied an injunction, Meat Institute spokeswoman Sarah Little said, “California should not be able to dictate farming practices across the nation.”

The three-judge panel was composed of Judge Consuelo Callahan, Judge Sandra Ikuta, and Judge Cathy Bencivengo. Judge Callahan was nominated to the court by George W. Bush and started her career as deputy district attorney and moved up to being a commissioner in a municipal court and an associate justice in the California Court of Appeals. She has been on the court since 2003. Judge Ikuta worked in a private law firm and served as a law clerk for Justice Sandra Day O’Connor. She, too, was appointed by President Bush. She graduated with a degree in journalism. In her private life, Judge Ikuta worked on Endangered Species issues, RCRA issues and the Clean Water Act.

Related:Agriculture, U.S. Constitution, lose in California court

The third ninth circuit judge is Judge Cathy Ann Bencivengo, a University of Michigan Law School graduate and joined the federal court after being nominated by President Barack Obama in 2011. In private law firm practice she became an expert on intellectual property cases.

Among the three judges there is not a shred of practical experience on agricultural matters.

These three judges wrote, “The district court did not abuse its discretion in holding that NAMI was unlikely to succeed on the merits of its dormant commerce clause claim.”

Incredible statement

The court opinion also makes an incredible statement that I find hard to believe is true. They say, “NAMI acknowledges that Proposition 12 is not “facially discriminatory.” It is hard to believe NAMI and its lawyers made this acknowledgement. As explained in this link here, under dormant Commerce Clause precedent, “courts will typically strike down a State law if it expressly mandates differential treatment of in-state and out-of-state competing economic interests in a way that benefits the former and burdens the latter;  Such laws are considered facially discriminatory.”

The opinion goes on and states, “The district court did not abuse its discretion in concluding that Proposition 12 does not have a discriminatory purpose given the lack of evidence that the state had a protectionist intent.”

One would have to be either blind, simply stupid, or something else not to see California’s protectionist intent with this law.

The three-judge panel has even more incredible language in its opinion when it said, “The district court also did not abuse its discretion in holding that Proposition 12 does not substantially burden interstate commerce.”

It is incredible to see this abuse of discretion by these three judges. But it is not surprising, given the judges’ illiterate agriculture background. Agriculture will be destroyed in the U.S. by judges of this ilk!  

A legal challenge in a different California court brought by the National Pork Producers Council and American Farm Bureau Federation continues.

NAMI will now appeal to the U.S. Supreme Court in an attempt to reverse these two California court decisions against agriculture. Let’s hope NAMI succeeds in the U.S. Supreme Court.     

The opinions of the author are not necessarily those of Farm Futures or Farm Progress.